Nation and Class Subjectivity in International Law and its Institutions in the Middle East (1919-1939)

by

Mai Taha

A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science (SJD)

Faculty of Law University of Toronto

© Copyright by Mai Taha 2015

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Nation and Class Subjectivity in International Law and its

Institutions in the Middle East (1919-1939)

Mai Taha

Doctor of Juridical Science

Faculty of Law University of Toronto

2015

Abstract

This dissertation makes visible the neglected economic dimensions of the interventions by

interwar international institutions in three cases: the League of Nations’ intervention in the

dispute between Turkey and the French Mandate for Syria and the Lebanon over the province of

Alexandretta (1936), the dispute between Turkey and the British Mandate of Iraq over the

province of Mosul (1925), and the technical assistance missions of the International Labour

Organization (ILO) to Egypt (1931). To different degrees, international legal institutions were

involved in nation-building projects in the interwar Middle East, over-determining “the problem

of nationalities” at the expense of other factors. These three episodes problematize the absence of

“class” as an analytical category in both critical international legal scholarship and the actual

politics of international institutions, and similarly the inattention to the struggle over capital that

operated beneath the legal mechanisms used by the League and the ILO. They show the

specificities of the Arab semi-periphery that reflected the nationalist anger and revolutionary

anti-colonialism of the periphery and yet served, at the same time, as ideal places for capital

accumulation and foreign investments from the core countries. Therefore, the episodes presented

in this dissertation illuminate the ways in which class society and capital accumulation together

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with national self-determination were constitutive of the new interwar global order imagined for

the semi-periphery by international legal institutions.

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For Sohier Megahed and the memory of Amal Rabie

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Acknowledgments

My utmost thanks go to my supervisor, Karen Knop, and members of the committee, Jens

Hanssen and Kerry Rittich. Without the agonizing over the argument, the ideas, the structure, the

organization and every detail of the dissertation with Karen, I would not have made it. I cannot

thank her enough for her careful reading and detailed feedback on my work. My heartfelt thanks

also go to Jens who supported me in every step of this process. His patience in reading draft after

draft, insights and friendship were invaluable. And my sincerest thanks go to Kerry who always

asked the hard questions and helped make this dissertation as astute as I could make of it. Her

help and support were indispensible.

I thank Nehal Bhuta who provided excellent guidance at the early stages of this project.

I am indebted for my internal examiner, Patrick Macklem, and external examiner, Antony

Anghie. I thank them for their careful and close reading of my dissertation. Their suggestions and

ideas on how to take this project further were incredibly valuable.

My deepest thanks also go to Peer Zumbansen. Peer created a collegial intellectual space in

Toronto, which continued to be a source of inspiration and enjoyment throughout my doctoral

years. I have learned tremendously from him.

I have benefited from many conversations with colleagues and friends from the Faculty of Law

at the University of Toronto, Osgoode Hall Law School and other fellow travelers. I thank Faisal

Bhaba, Honor Brabazon, Irina Ceric, Michael Fakhri, Alejandro Lorite, Mazen Masri, Hélene

Mayrand, Tanya Monforte, Claire Mumme, Michael Nesbitt, Obi Okafor, Akbar Rasulov, Owen

Taylor, Sujith Xavier and Robert Wai. I thank in particular, Amar Bhatia, Robert Knox and

Umut Özsu for their friendship and generosity in reading and commenting on my work

throughout the years. My thanks also go to Abdelaziz Ezzelarab and Hani Sayed whom I

continue to learn from.

My warmest thanks and love go to my family: Amina Saleh, Amr Taha, Ahmed Taha and Sohier

Megahed. I cannot thank them enough for their love and unconditional support throughout these

past years.

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This dissertation would have not been possible without the friendship and love of Dina El

Ghandour, Niloofar Golkar, Dalia Ibrahim, Shourideh Molavi, Mohammad Mossallam, Heba

Rabie and Ola El Shawarby. Many thanks go to Bahaa Ezzelarab who supported this project

from the beginning. I also thank Yasmine Aly, Omar Cheta, Sarah El-Kazzaz, Alex Levant,

Ladan Mehranvar and Rania Salem who were kindred spirits throughout this process.

The primary materials used here were gathered with the help of the archivists at the League of

Nations and the International Labour Organization (ILO) archives in Geneva. I thank Mr.

Jacques Oberson for his invaluable assistance in finding all the materials on my topic from the

League’s archive. I also thank Mr. Remo Becci for taking the time to answer all my questions

about the history of the ILO and for his generous help in gathering the materials needed from the

ILO archive.

Finally, I thank Osgoode Hall Law School for providing me with a supportive intellectual home

during my last year of the SJD.

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Table of Contents

Acknowledgments  .................................................................................................................................  v  

Table  of  Contents  ................................................................................................................................  vii  

Introduction  ...........................................................................................................................................  1  

  The  Three  Cases  .............................................................................................................................  3  1

  The  Cases  in  Context:  Treaties,  Ruptures  and  Collapses  ..................................................  5  2

  Outline  of  the  Arguments  and  Broader  Intervention  ........................................................  7  3

3.1   Countering  the  Cultural  Turn  in  Critical  International  Law:  Incorporating  Class  and  

Capital  .................................................................................................................................................................  7  3.2   Emancipatory  Legal  Categories  Don’t  Emancipate:  Nation  and  Class  ................................  9  3.3   Between  Centre  and  Periphery:  Exporting  European  Legal  Technologies  ......................  9  

  Organization  of  the  Dissertation  ............................................................................................  10  4

  International  Law’s  Geneva  Archive:  Omissions,  Additions  and  Fictions  ................  12  55.1   The  Politics  of  Legal  Archives:  Exclusion  and  Resistance  ....................................................  12  5.2   The  Politics  of  Access  ........................................................................................................................  13  5.3   The  Politics  of  Incompleteness  and  Translation  .....................................................................  14  

Chapter  1  The  Discontents  of  Critical  International  Law  and  the  Creation  Stories  of  

the  League  of  Nations  and  the  International  Labour  Organization  (ILO)  .......................  16  

  Critical  International  Law  Narrates  Interwar  Legal  Technologies  .............................  17  1

1.1   The  Critical  Stream  ............................................................................................................................  18  1.1.1   Rousseauian  Self-­‐determination  versus  Hobbesian  Self-­‐determination  ..............................  18  1.1.2   Nineteenth-­‐Century  Legal  Positivism  and  the  New  Modernist  International  Law  ..........  20  1.1.3   Self-­‐Determination…  Between  the  “Normal”  and  the  “State  of  Exception”  .........................  22  1.1.4   “Impure”  Sociology  and  “Pure”  Law  .....................................................................................................  24  

1.2   Third  World  Approaches  to  International  Law  (TWAIL)  .....................................................  27  1.3   Summary  ...............................................................................................................................................  35  

  International  Legal  Institutions  and  the  Interwar  Period  .............................................  37  2

2.1   The  League  of  Nations  ......................................................................................................................  37  2.2   The  International  Labour  Organization  .....................................................................................  43  

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  Conclusion  ......................................................................................................................................  50  3

Chapter  2  Projects  of  Nation-­‐Building  in  the  Sanjak  of  Alexandretta:  The  League  of  

Nations’  National  Confessional  Program  and  the  Search  for  “Authentic”  Ethnicity  ....  51  

  The  Prelude:  Managing  “Ethnic”  Difference  in  the  Late  Ottoman  Empire  ...............  55  1

  Self-­‐Determination  for  the  “Semi-­‐Periphery”  as  Nation-­‐Building  ..............................  57  2

  Forging  New  National  Identities:  the  Alexandretta  File  at  the  League  of  Nations  .  62  3

3.1   The  Negotiation  Sessions  ................................................................................................................  67  3.2   Sessions  of  Nation-­‐building  in  Geneva  ........................................................................................  70  3.3   The  National  Confessional  Program  ............................................................................................  76  3.4   The  “Technical”  Special  Tribunal  and  the  Ethno-­‐Class  Politics  of  Nation-­‐Building  ....  78  3.5   Settlement,  Petitions,  Celebrations  and  a  General  Strike  ....................................................  81  

  Nation-­‐Building  between  the  Elites  and  the  League  ........................................................  84  4

  Missing  “Class”  ..............................................................................................................................  88  5

Chapter  3  The  League  of  Nations  in  Mosul  1924-­‐26:  Nationalism,  Oil  Concessions  and  

the  Creation  of  a  New  Iraqi  State  ...................................................................................................  90  

  The  Treaties  and  their  Politics:  from  Sykes-­‐Picot  to  Lausanne  ...................................  92  1

1.1   The  Clandestine  Sykes-­‐Picot  Agreement  1916  ........................................................................  93  1.2   Lausanne  1923:  Mosul’s  Unsettled  Status  .................................................................................  94  

  Nation-­‐building  in  Iraq  and  its  Intersection  with  “Class”  in  the  Civilizational  2

Discourse  ...............................................................................................................................................  96  

2.1   Plebiscite  in  the  Semi-­‐periphery?  ................................................................................................  99  2.2   Three  Europeans  in  a  Commission  of  Inquiry:  Self-­‐Determination  of  the  “Backward”  

and  the  “Chaotic”  ........................................................................................................................................  101  

  Moods,  Temperaments  and  Characters:  the  League’s  Inquiry  and  the  Ethno-­‐racial  3

Making  of  Mosul  ...............................................................................................................................  108  

3.1   Whose  Majority?  ..............................................................................................................................  109  3.2   What  is  the  “Ethnical  Character”  of  the  Town  of  Mosul?  ...................................................  111  3.3   The  League’s  Search  for  “Origins”:  Who  is  a  Kurd?  Who  is  an  Arab?  ............................  112  3.4   The  League  of  Nations’  Construction  of  the  Iraqi  Nation-­‐State:  The  Logic  of  Capital  

and  the  “Rebellious”  Kurds  ....................................................................................................................  118  

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  Imperial  Capital  as  Economic  Prosperity  .........................................................................  122  4

4.1   Trade  and  the  Politics  of  Movement  of  Colonial  Products  ................................................  122  4.2   The  Oil  Question  on  the  Margins  ...............................................................................................  123  

  Re-­‐locating  Self-­‐determination  ...........................................................................................  128  5

  Outcomes  of  the  Inquiry:  Colonial  Control,  League  Supervision  and  “Minority  6

Protection”  .........................................................................................................................................  131  

Chapter  4  Reading  Class  Subjectivity  in  International  Law  and  Its  Institutions  

Through  the  ILO’s  Technical  Assistance  Mission  in  Inter-­‐War  Egypt  ............................  140  

  The  Road  to  a  Semi-­‐Colonial  Political  and  Legal  Order  in  Egypt  ..............................  146  1

  A  Prelude  to  the  ILO  Mission:  Balancing  Rida’s  and  Schevenel’s  “Mild  Radicalism”  2

with  the  ILO’s  “Gradualism”  .........................................................................................................  152  

  The  ILO’s  Mission  of  the  “Real,  the  Material  and  the  Technical”  not  the  3

“Philosophical  and  the  Political”  ................................................................................................  158  

3.1   The  ILO’s  Recommendations:  from  the  Micro-­‐politics  of  Social  Reforms  to  a  

Structural  Transformation  in  Employer-­‐Worker  Relationship  .................................................  161  3.2   The  ILO’s  Colonial  Legality  and  Class  Subjectivity  ...............................................................  165  

  From  Technical  Assistance  to  Membership  in  the  ILO  .................................................  172  4

4.1   Technical  Assistance  and  Its  Ends  .............................................................................................  172  4.2   Egypt’s  Membership  and  the  ILO’s  New  Adventures  ..........................................................  176  

  Conclusion  ...................................................................................................................................  184  5

Conclusion  .........................................................................................................................................  187  

  On  the  National  Question  …  A  Fierce  Debate  ...................................................................  187  1

  International  Law’s  Potential?  .............................................................................................  193  2

  Inside  and  Outside  International  Law  ...............................................................................  194  3

  Rethinking  Methods  ................................................................................................................  196  4

Bibliography  .....................................................................................................................................  198  

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To articulate the past historically does not mean to recognize it “the way it really was” (Ranke). It means to seize hold of a memory as it flashes up at a moment of danger. Historical materialism wishes to retain that image of the past which unexpectedly appears to man singled out by history at a moment of danger. The danger affects both the content of the tradition and its receivers. The same threat hangs over both: that of becoming a tool of the ruling classes. In every era the attempt must be made anew to wrest tradition away from a conformism that is about to overpower it. The Messiah comes not only as the redeemer, he comes as the subduer of Antichrist. Only that historian will have the gift of fanning the spark of hope in the past who is firmly convinced that even the dead will not be safe from the enemy if he wins. And this enemy has not ceased to be victorious.

Walter Benjamin, “Theses on the Philosophy of History”1

1 Walter Benjamin, “Theses on the Philosophy of History” in Walter Benjamin, Illuminations (New York: Houghton Mifflin Harcourt, 1968) 253 at 255.

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Introduction

Fahmy hurried to his room, returning with a piece of paper, which he unfolded. He presented it to his brother and said, “The speech isn’t all I’ve got. Read this handbill, which has been distributed secretly. It contains the letter from the Wafd Delegation to the Sultan.”…

“Since the belligerents agreed to make the principles of freedom and justice the basis for the peace treaties and announced that peoples whose status had been altered by the war would be consulted about self-government, we have taken upon ourselves an effort to liberate our country at the Peace Conference. Since the traditionally dominant power has disappeared from the arena and since our country, with the dissolution of Turkish sovereignty over it, has become free of every claim against it, and since the Protectorate, which the English proclaimed unilaterally without any agreement from the Egyptian nation, is invalid and merely one of the necessities of war, which ends with the end of the war, based on these circumstances and the fact that Egypt has suffered as much as could be expected of her while serving in the ranks of those claiming to protect the freedom of small nations, there is nothing to prevent the Peace Conference from acknowledging our political freedom pursuant to the principles it has adopted as its foundation.1

This is an excerpt from Palace Walk or Bayn al-Qasrayn, the first book of Naguib Mahfouz’s

landmark literary work, The Cairo Trilogy. One of Mahfouz’s main protagonists, Fahmy, is a

law student at Cairo University and son of a shop owner, Sayyid Ahmad Abd al-Jawad famously

known as Si al-Sayyid who personified middle class aspirations, nationalist desires of

independence and the vagaries of patriarchy at the end of World War I. The handbill that Fahmy

read was a Wafdist manifesto in support of the participation of Egyptian anti-colonial

nationalists in the proceedings of the 1919 Paris Peace Conference.2 They were promised to be

“consulted about self-government.”3 They expected and demanded to be physically present as

equal members of the community of nations and, as the manifesto claims, to put into effect the

principles that the Peace Conference espoused, holding this great concert of nations accountable

on its own terms. This was a new phase of Egypt’s coloniality. The end of Ottoman sovereignty

1 Naguib Mahfouz, Palace Walk: The Cairo Trilogy, Vol. I (New York: Anchor Books, 2011) at 371 (emphasis added). 2 “Wafdist” refers the Wafd Party. It was a secular, liberal, nationalist party that was instrumental in party politics and the nationalist movement during the interwar period. See generally, Marius Deeb, Party Politics in Egypt: the Wafd and Its Rivals 1919-1939 (Oxford: St. Antony’s Middle East Monographs, No. 9, Ithaca Press for the Middle East Centre, St. Antony’s College, Oxford, 1979). 3 Mahfouz, Palace Walk, supra note 1 at 371.

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triggered a specifically Egyptian semi-coloniality. Nationalists attempted to use international

forums and engaged with the concepts of international law, using its language as a tactic, among

many, to support the case for their independence and self-determination.

He was riding a streetcar to Giza on his way to the Law School when he found himself in a band of students who were waving their fists and protesting. …Then Fahmy shouted along with all his comrades at the same time, “Independence!”…

Before they knew what was happening, Mr. Amos, the assistant British judicial counsel in the Ministry of Justice, was making his way through their midst. They greeted him with a single chant: “Down with the Protectorate!” He was gruff with them and not even civil, advising them to return to their lessons and leave politics to their fathers. At that point one of them protested: “Our fathers have been imprisoned. We won’t study law in a land where the law is trampled underfoot.” … It was not long before the tramway workers, the drivers and street sweepers [also] went on strike.4

Anti-colonial agitation against the unilateral declaration of the British protectorate intersected

with working class demands against British companies’ repression of workers, at a time when

foreign investments started flowing into the country, facilitated by the political and economic

context, as well as the colonial legal infrastructure instituted through the Capitulations regime

and the Mixed Courts system.5 Unlike Fahmy, a fictional character born out of Mahfouz’s

literary imagination, Mr. Amos was far from fictional. Sir Percy Maurice Amos was a British

barrister, judge, legal academic, a founding editor of the Modern Law Review – still one of the

most respected law journals today and a legal advisor to the International Labour Office. He was

also a central advocate of the Mixed Courts’ two-tiered legal system. Amazed by “the spectacle

of a mosaic of independent jurisdictions,” Mr. Amos saw the Mixed Courts of Egypt as a

progressive reform of the antiquated and “medieval” Ottoman Capitulations.6 His busy career

also included being one of the “Egyptian” representatives to the International Labour

Organization (ILO). Only a few months after the end of the British Protectorate in Egypt in 1922,

4 Ibid. at 383, 387. 5 On the British Protectorate, see Malcolm McIlwraith, “The Declaration of a Protectorate in Egypt and its Legal Effects” (1917) 17:1 J. Soc. Comp. Legis. N.s. 238. On the Capitulations and the Mixed Courts, see Nathan J. Brown, “The Precarious Life and Slow Death of the Mixed Courts of Egypt” (1993) 25:1 Int’l J. Middle E. Stud. 33. 6 Mauris S. Amos, “Legal Administration in Egypt” (1930) 12:4 J. Comp. Leg. & Int. Law 168 at 169,170.

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and in his capacity as an official at the Egyptian Ministry of Justice, he prepared a memorandum

making the legal case for Egypt’s membership to the ILO.7

In the Egyptian popular imagination, Mr. Amos represented the link between the “Geneva

world” of international legal institutions and the specifically colonial oppression of both the

“nation” and the working class by British colonialism. Twentieth-century Egyptian identity-

formation was not demarcated by exclusive categories of “nation” or “class”; rather the

experience of colonial violence criss-crossed those emergent constituents of identity and material

reality. The figure of Mr. Amos crystallized precisely the suppression and artificial separation of

these intersecting categories – anti-colonial nationalism and working class resistance – through

his relationship with international law and its institutions, as well as with the colonial presence in

Egypt. Furthermore, he was an agent in the legal and political process of framing Egypt as part of

the post-Ottoman semi-periphery: it could participate in international organizations, such as the

ILO, but only with British authorization and under semi-tutelage. Although Egypt officially

acquired independent legal status in 1922, it was effectively governed in a very similar way to

the “A Mandates” instituted by the League of Nations. Article 22 of the Covenant of the League

of Nations divided the colonized world into mandates, grading their autonomy according to their

level of civilization.8 The Egyptian interwar experience with empire, capital and international

law, as depicted in Mahfouz’s historical fiction, echoed experiences in Syria and Iraq. This

dissertation, therefore, studies comparatively the experiences of these three, now independent

states with international law and the interventions made by the League of Nations and the ILO

between the two World Wars.

The Three Cases 1Situated in between the emergent categories of the “centre” – Europe – and the “periphery” - the

colonized world - the three cases studied in this dissertation explore the role of international law

7 Ibid. Notably, at the founding of the Modern Law Review in 1937, there was an effort to recruit members for the Editorial Board who were “progressive but not revolutionary, academic but still of relevance to those practicing profession.” Sir Maurice Amos was among those four members. See Cyril Glasser, “Radicals and Refugees: The Foundation of the Modern Law Review and English Legal Scholarship” (1987) 50 Mod. L. Rev. 688 at 698. 8 Covenant of the League of Nations, 28 April 1919, 13 (1919) AJIL Sup. 128. For a more detailed discussion on the gradation of sovereignty, see Chapter 1 of this dissertation.

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and institutions in constructing the post-Ottoman Arab world as a “semi-periphery” during the

interwar period. The region was struggling with issues of democratic and ethnic self-

determination, including issues of minority rights, as was the post-war Europe “centre,” yet like

the “periphery” it also had imposed on it the Covenant’s discriminatory civilizational standard

which dictated the degree of self-government: “A Mandates” for territories formerly belonging

to the Turkish Empire that had “reached a stage of development where their existence as

independent nations can be provisionally recognized,” “B Mandates” for territories in Central

Africa that had reached a stage that required the Mandatory power to be responsible for the

territory’s administration and “C Mandates” for German colonies in South West Africa and the

Pacific Islands that would be administered directly by the laws of the Mandate as integral

constituents of its territory.9

Critical histories of international law have produced influential accounts of the interwar period

that embody one or both of these lenses: democratic and ethnic self-determination, often in the

case of the so-called Newstream scholars writing mainly about the European “centre”; and the

standard of civilization of the Mandate System in the case of Third World Approaches to

International Law (TWAIL) scholars concentrating on the colonized “periphery.” While those

two common interwar lenses illuminate important dimensions in the three case studies examined

here, this dissertation makes visible the neglected economic dimensions of the interventions by

international institutions in three cases: the League of Nations’ intervention in the dispute

between Turkey and the French Mandate for Syria and the Lebanon over the province (“Sanjak”)

of Alexandretta, the dispute between Turkey and the British Mandate of Iraq over the province

(“Wilayet”) of Mosul and the ILO’s technical assistance missions to Egypt. To different degrees,

these international legal institutions were involved in nation-building projects in the interwar

Middle East, over-determining “the problem of nationalities” at the expense of other factors. The

three episodes problematize the absence of “class” as an analytical category in both the critical

scholarship on and the actual politics of international institutions, and also the inattention to the

underlying struggle over capital that operated beneath the legal mechanisms used by the League

and the ILO. They show the specificities of the Arab semi-periphery that reflected the nationalist

anger and revolutionary anti-colonialism of the periphery while serving, at the same time, as

9 Ibid.

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ideal places for capital accumulation and foreign investments from the core countries.10

Therefore, the episodes presented in the following chapters illuminate the ways in which class

society and capital accumulation together with national self-determination were constitutive of

the new interwar global order imagined for the semi-periphery by the international legal

institutions.

The Cases in Context: Treaties, Ruptures and 2Collapses

The most central aspect of the historical context of the cases studied here is that these territories

were all once part of the Ottoman Empire. The Ottoman Empire had been the sovereign authority

in most Arab lands since 1517. Towards the mid-nineteenth century, the Sublime Porte

embarked upon a series of centralizing and secularizing reforms, known as the tanzimat (1839-

1876), which entailed a codification of the criminal and commercial law, as well as incorporating

existing law into its modernized state structures.11 During this period, the millet system that

granted “non-Muslims” the right to organize into communities run by ecclesiastical leaders and

prominent notables was secularized.12 Instituted as a bulwark to stem European encroachment,

the millet system came to constitute the first form of the nation-based division of the Ottoman

Empire.

In Egypt, Ottoman influence was significantly undermined after the British occupation in 1882.13

The British occupation of Iraq in 191714 and Palestine in 1918,15 as well as the French

10 Daniel Chirot & Thomas D. Hall, “World-System Theory” (1982) 8:1 Ann. Rev. Sociol. 81-106 at 85. Of the growing international law literature on the semi-periphery see especially, Umut Öszu, Formalizing Displacement: International Law and Population Transfers (New York: Oxford University Press, 2015). 11 Şerif Mardin, “Religion and Secularism in Turkey” in Albert Hourani, Philip Khoury & Mary C. Wilson, The Modern Middle East: A Reader (Berkley & Los Angeles: University of California Press, 1993) 347 at 372. This period of reforms or reordering of the Empire also signalled what Ussama Makdisi calls “Ottoman Orientalism,” which was a combination of Ottoman attitudes that evolved from the nineteenth century Ottoman reforms that “implicitly and explicitly acknowledged the West to be the home of progress and the East, writ large, to be a present theater of backwardness.” Ussama Makdisi, “Ottoman Orientalism” (2002) 107:3 Am. Hist. Rev. 768 at 769. 12 Kamel S. Abu Jaber, “The Millet System in the Nineteenth-Century Ottoman Empire” (1967) 57:3 Muslim World 212 at 212, 220. 13 Timothy Mitchell, Colonizing Egypt (Berkley: University of California Press, 1991) at x.

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occupation of Syria in 1920,16 put into effect schemes hedged in by the secret Sykes-Picot

Agreement between Britain and France in 1916.17 The end of World War I marked the end of

Ottoman rule, paving the way for the creation of new nation-states in the Middle East. The

League of Nations Mandate system institutionalized these arrangements: Britain claimed the

mandates for Iraq and Palestine, while France was granted the mandate for Syria and the

Lebanon. Egypt continued to be nominally governed by the British Empire.

In 1922 Kemal Atatürk, first president and founder of the modern Turkish Republic,

constitutionally abolished the Caliphate (the Islamic state seated in Constantinople) and met the

European victors of World War I at Lausanne to negotiate the fate of the Ottoman dominions and

future of their relations. The final outcome of the Lausanne Peace Conference was the

ratification of the Lausanne Treaty (1923), which would form the legal basis of the League’s

later interventions in the region. Among many other things, the treaty abolished the Capitulations

regime that had given special legal privileges to foreigners residing in the Ottoman Empire. It

also renegotiated the Ottoman external debt and set the frontiers of the new Turkish Republic,

with provisions for the more contentious territories such as Mosul.18 The interwar period was

therefore the beginning of a new era for the region. While Ottoman influence had officially

ended, the repercussions of the fall of the Empire was a reordering of the entire region, including

the drawing of borders and maps, most of which are still in effect today, at a time when foreign

capital was flowing in and colonialism was taking new form.

14 Abbas Kadhim, Reclaiming Iraq: The 1920 Revolution and the Founding of the Modern State (Austin: University of Texas Press, 2012) at 98. 15 Ilan Pappé, The Ethnic Cleansing of Palestine (Oxford: Oneworld Publications, 2007) at 1929. 16 James Gelvin, Divided Loyalties: Nationalism and Mass Politics in Syria at the Close of the Empire (Berkley: University of California Press, 1998) at 291. 17 Rosemary Hollis, “Europe in the Middle East” in Louise Fawcett ed., International Relations of the Middle East (Oxford: Oxford University Press, 2013) 344 at 348. 18 Roger Owen, Şevket Pamuk, A History of Middle East Economies in the Twentieth Century (Cambridge: Harvard University Press, 1998) at 13.

7

Outline of the Arguments and Broader Intervention 3This dissertation makes three main arguments. First, I make the case for adopting an

intersectional method of assessing international law’s outcomes. Specifically, through examining

class subjectivity and capital accumulation in the cases, I complicate the nation-centric methods

typically used to study the interwar period. Second, I argue that international legal technologies

of the interwar period (such as plebiscites, commissions of inquiry and technical assistance

missions) are deeply intertwined and historically linked with imperialism and capitalism.

Therefore, a politics of emancipation is necessarily connected to legal tactics and other forms of

resistance that might lie outside the law. Third, I distinguish the Middle East story from the

stories narrated by critical international law that are typically reliant on the binaries of core and

periphery.

3.1 Countering the Cultural Turn in Critical International Law: Incorporating Class and Capital

First, the linguistic and cultural turn in international law has demoted the social relations and the

materiality of international law.19 “Reality, after all, cannot be changed with just a change of

language.”20 By underscoring “class” subjectivity and capital accumulation in the interwar

history of international law - a history that is otherwise centered on the “national question” - this

dissertation seeks to counter the linguistic and cultural turn with a material understanding of

international law.21 However, I depart from economically deterministic methods that dismiss

19 See for example Nathaniel Berman, Passion and Ambivalence: Colonialism, Nationalism, and International Law (Leiden: Martinus Nijhoff Publishers, 2011) at 404; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (New York: Cambridge University Press, 2006) at 7, 12. On the broader turn to culture and language in the social sciences and history, see David McNally, Bodies of Meaning: Studies on Language, Labor and Liberation (Albany: SUNY Press, 2001) at 112. 20 Himani Bannerji, Shahrzad Mojab & Judith Whitehead, “Of Property and Propriety: The Role of Gender and Class in Imperialism and Nationalism: A Decade Later” (2010) 3:2 Comp. Stud. South Asia, Africa & the Middle East 262 at 271. They argue that “[i]f the active implication of language, modes of expression and communication, is severed from all other constitutive relations of the social, and if the socioeconomic relations the world over are such that they produce and nurture “civilizational” clashes, then they must be critiqued, practically opposed, and defeated, at the level both of language or theory and of reality.” 21 A notable exception is the emerging strand of critical international law scholarship that promotes a material understanding of international law. See for example, Robert Knox, “Marxism, International Law and Political Strategy” (2009) 22:3 Leiden J. Int’l L. 413; Tor Krever, “Quantifying Law: Legal Indicator Projects and the Reproduction of Neoliberal Common sense” (2013) 34:1 Third World Quart. 131.

8

culture and nationalism as infantile preoccupations. Instead, using the work of Himani Bannerji,

I adopt a specific kind of an intersectional approach, in which the economic dimension is one

aspect of a more comprehensive method.22 This method not only incorporates different

categories of identity-formation, such as ethnicity, race, class and gender, as opposed to treating

each in isolation (as is the case with the traditional intersectional method associated with Critical

Race Theory), it also views these categories as operating at the same time and at once. This

method is not utilized here to bring a reformist solution for reclaiming the progressive potential

of international law; it is a method with which to re-evaluate the history of international law and

its outcomes. I argue, along with certain schools of radical feminism, that race, class and gender

are inseparable and constitutive aspects of identity.23 Since colonialism, white supremacy,

capitalism and patriarchy are historical and historically interconnected, the national and ethnic

experiences of oppression are also interconnected with the experiences of class and gender

oppression.24

In the case studies, the League of Nations and the ILO were actively involved, albeit to different

degrees, in nation-building projects in the Middle East. As a result, communities were organized

exclusively in ethno-national terms, which, as will be shown, corresponded to imperial and

capital interests, especially where the League was involved. Furthermore, these national

categories were not only constructions, but constructions that mapped onto particular social

classes. Even the ILO, which took the working class as its main subject of concern, was

essentially involved in the same imperialistic and capital-driven networks of relationships that

sought to build a modern Egypt that would be part of the new postwar community of nations.

While critical international law provides an appealing alternative to traditional narratives in the

field, this stream of scholarship has tended to adopt a single lens for analyzing interwar

22 For a critique of economic determinism and the structuralist strand of Marxism, see Werner Bonefeld, Richard Gunn, and Kosmas Psychopedis “Introduction” in Werner Bonefeld et. at., Open Marxism: Volume I: Dialectics and History (London: Pluto Press, 1992) x at x; E. P. Thompson, “The Poverty of Theory and Other Essays” in E. P. Thompson, The Essential Thompson (New York: The New Press, 2001) 445 at 462, 476. 23 Himani Bannerji, Thinking Through: Essays on Feminism, Marxism and Anti-Racism (Toronto: Women’s Press, 1995) at 12. 24 Bannerji, Mojab & Whitehead, “Of Property and Propriety”, supra note 20 at 271.

9

international law, specifically the nationalities question. Introducing “class” enables a more

nuanced assessment of the outcomes of interwar international legal interventions.

3.2 Emancipatory Legal Categories Don’t Emancipate: Nation and Class

Second, I argue that interwar legal technologies or mechanisms, such as plebiscites, commissions

of inquiry and labour technical assistance missions, did not challenge empire and capital in the

interwar Middle East. Rather, they supported them through maintaining a coherent and dynamic

network of individual and institutional relationships that mediated international legal

interventions. Additionally, and as Fahmy reminds us in Mahfouz’s Palace Walk, the use of the

language of international law in the struggle for the right to self-determination, as well as its

institutional mechanisms, was one tactic among others, which included demonstrations, factory

occupations, underground organizing and strikes. The cases suggest that while international legal

interventions were mired in imperialistic and capital-driven networks of relationships, making

the most of such episodes, although important, was only one of the many forms of resistance.

3.3 Between Centre and Periphery: Exporting European Legal Technologies

Third, the geopolitical context of the instances discussed here makes a compelling case for

attention to the specifics of the semi-coloniality of the Middle East after World War I. Through a

study of the micro politics of international legal interventions in the region that combines

archival materials with the relevant social history, I demonstrate how the experience of the

Middle East with interwar technologies of international law tells a different story from the one

narrated by critical international law. Technologies tailored for Europe came to be associated

with and applied in the Middle East. Almost like a “boomerang”, the European experience in the

Middle East altered the international law binaries of civilized and uncivilized.25

25 On the metaphor of the imperial boomerang, see Hannah Arendt, The Origins of Totalitarianism (New York: Houghton Mifflin Harcourt, 1973) at 206. See also Richard H. King and Dan Stone, Hannah Arendt and the Uses of History: Imperialism, Nation, Race, and Genocide (New York: Berghahn Books, 2007) at 2.

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Organization of the Dissertation 4Chapter 1 introduces the relevant themes in the Newstream and Third World Approaches to

International Law literature. While emphasizing the important contribution of these bodies of

literature in correcting for the progress narratives that dominate mainstream international legal

history, the chapter also highlights the missing links and leaps in the two critical literatures,

which will emerge powerfully in the dissertation’s three case studies organized around class and

capital as well as the nation. While two of the cases involve the League of Nations, whose

interventions were more often driven by nations and nationalism, the third concerns the ILO,

which was organized around the relationship between the working class, the industrialists and the

ruling class. Chapter 1 therefore also introduces the historical trajectory and the “creation

stories” of the two institutions, highlighting their internal structures and functions, as well as

their politics.

Chapter 2 is a case study of the 1936 dispute between Turkey and the French Mandate for Syria

and the Lebanon over the future of Alexandretta, located between Syria and Turkey. The chapter

studies the politics of the League’s international legal technologies (the Fundamental Law, the

attempted plebiscite and the Committee of Experts) used to intervene in the Alexandretta dispute.

In this case, the League of Nations’ Committee of Experts required electors residing in

Alexandretta to register as Turkish, Alawite, Arab, Armenian, Greek-Orthodox, or Other. These

pre-determined, mutually exclusive and fixed national categories did not reflect the existing

overlapping and changing identities of the Alexandretta residents. International law, therefore,

provided a political vocabulary that constructed, rather than captured, identitarian categories of

national self-determination. In addition, the chapter suggests that by framing the dispute in these

terms, the League not only reduced distinctions among people in Alexandretta to ethno-national

identities, but also neglected that these distinctions were also effectively class and gendered

distinctions.

Chapter 3 focuses on the dispute between the British Mandate of Iraq and Turkey over the

province of Mosul. The 1926 League of Nations’ nation-building project in Mosul was

effectuated through the League-appointed Commission of Inquiry. In this case, the focus on the

ethno-national discourse not only collapsed other distinctions based on class or gender, but also

redirected attention from the capital accumulation projects manifested in the deals over the oil

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concessions. This chapter studies the economics of the League’s nation-building project through

the various legal mechanisms used to manage the dispute. The chapter makes visible the

underlying struggle over capital in the findings of the report of the League-appointed

Commission of Inquiry. It also highlights the intersection of ethnicity with class through the

Commission of Inquiry’s choices of interviewees. Finally, it shows the opposing nation-building

projects that were operating in the province, namely the Iraqi project, supported and privileged

by the League and the British Mandate, in opposition to the indigenous Kurdish struggle for self-

determination. The League’s objective, therefore, was not simply to create a sovereign nation-

state that would be economically viable, but to create one that would be economically viable

according the core capitalist states.

In Chapter 4, I focus on the ILO’s technical assistance missions to Egypt in the 1930s in light of

persistent anti-colonial nationalist and working class struggles that used the language of

international law and its institutional framework as well as other “extra-legal” tactics, such as

strikes, occupations and demonstrations. Through the ILO, “class” became a distinct category (or

subject) of international law. The ILO’s tripartite system of state-management-labour

representation potentially enabled the working class to contribute to the formation of global

labour policy. I read this specific episode as one that not only illuminates how “class” in the

semi-periphery became salient in international law, but also reveals the ILO’s entangled

relationship with empire and capital as mediated by international law and its institutional

structure. This was most vivid in the networks of relationships established between the ILO, the

Egyptian Labour Office, the colonial presence and the local industrialists. Within this complex

web of networks, international law operated on the ground through the different aspects of the

ILO’s and the Labour Office’s joint labour policy of legal technical assistance. Aimed at

depoliticizing the labour movement, this policy sought to sideline class as a “technical” and non-

political category in the nationalist struggle for independence and self-government. Therefore,

the League’s omission of class in its interventions was hardly compensated for by the ILO’s sole

focus on the working class. On the contrary, the same relationships and networks were forged

and nourished.

12

International Law’s Geneva Archive: Omissions, 5Additions and Fictions

On a hill and fronted by private botanical gardens, overlooking Geneva’s Lac Léman with its Jet

D’Eau gushing into the air, lies the archive of the League of Nations. Only a few kilometers

away, accessed through a beautiful trail that passes over the hill, a statue of a muscular

construction worker leads to the ILO archive. The archives in this picturesque Geneva setting

encompass the official records and other documentation of the various interventions of the

League of Nations and the ILO. The interventions examined in this dissertation, I seek to show,

were imperial and capital-driven interferences in the colonized world during the interwar period.

My archival research in support relies primarily on materials collected from the League of

Nations archive for the first two case studies, on Alexandretta and Mosul; and from the ILO

archive for the case on Egypt. Therefore, it is important to say a few words about my approach to

the archive, to its narrative structures, fictions and politics. Three main considerations arise: the

politics of exclusion, the politics of access and the politics of incompleteness and translation.

5.1 The Politics of Legal Archives: Exclusion and Resistance

Legal scholars have paid very little attention to their use of archives, including court records, in

particular, the ways in which they are arguably necessarily “documents of exclusion.”26 Needless

to say, the fact that I only used the archives of international legal institutions omitted important

aspects, and thus nuances, from my research. More significantly, it privileged a site of

(exclusively) European knowledge-production over the peripheral or the national archives of the

colonized.27 The archive is not merely a repository of historical documents, but an incomplete

and a contested site that has significant implications for the way we write and conceive of

26 Rebecca Monson, “Unsettled Explorations of Law’s Archives: The Allure and Anxiety of Solomon Islands” Court Records” (2014) 40:1 A Fem LJ 35 at 40, citing Antoinette Burton, “Introduction” in Antoinette Burton, ed. Archive Stories: Facts, Fictions and the Writing of History (Duke University Press Durham, 2005) 1 at 6. 27 See Edward Said on understanding Orientalism as an archive. “In a sense Orientalism was a library or archive of information commonly and, in some of its aspects, unanimously held. What bound the archive together was a family of ideas and a unifying set of values proven in various ways to be effective. These ideas explained the behaviour of Orientals; they supplied Orientals with a mentality, a genealogy, an atmosphere; most important, they allowed Europeans to deal with and even to see Orientals as a phenomenon possessing regular characteristics.” Edward Said, Orientalism (New York: Vintage Books, 1979) at 41,42.

13

history.28 In a sense, the Geneva archives are a source of international law’s meaning and

authority empowered by the common law culture of precedent and ultimately its structural

legitimacy.29 Drawing attention to the politics of archival legal research here is intended to recast

light on “the quiet, mundane, and epistemic violence of the law” that might otherwise be

obscured through the neatly organized documents and folders in Geneva.30

My approach to the archive, therefore, is to read it against itself. In other words, I strive to

identify and foreground the archive’s gaps and omissions. While supplementing archival

research with social history, as I do here, does not mitigate the archive’s incompleteness (rather

it could actually create another fiction), it does contextualize the archive-based stories which

narrate “from above.” For example, the ILO archive is full of personal and confidential letters by

state officials, politicians, company directors and workers that are not part of the ILO’s official

record. The ILO archive thus reveals a particular story of top-down transformation in labour

policy: Egyptian labour law reform as a story of the close relationship between Harold Butler,

the Director of the ILO and R.M. Graves, the British Director of the Egyptian Labour Office, that

is manifested in their joint quest for social reform. This is clearly a very specific account of this

historical episode. The archive also includes numerous confidential letters that point to the

careerist motivations of many of the protagonists, such as Graves, which conflicted with the

interests of the working class and Egyptians more broadly. Similarly, the League of Nations

sidelined almost all individual petitions and letters sent by Syrians protesting the mandate and

the League’s lack of action to prevent colonial oppression. While these documents were part of

the League’s records, the substance of this correspondence never made it to the documented

official deliberations of the Council.

5.2 The Politics of Access

Second, the easy access to the League of Nations and the ILO archives stands in contrast with the

difficulty of accessing the destroyed archives in Iraq, the archives in inaccessible war-stricken

28 Renisa Mawani, “Law’s Archive” (2012) 8 Ann. Rev. Law Soc. Sci. 337 at 338. 29 Ibid. at 337. 30 Monson, “Unsettled Explorations of Law’s Archives”, supra note 26 at 35.

14

Syria and the archives subject to restricted security access in Egypt. The current inaccessibility of

the archives of these post-colonial states is symbolic and traceable to the politics of the very

international legal institutions that continue its early twentieth century legacies until today. It is

no surprise that in 2014, Sykes-Picot (legitimated by the League’s mandates) is a brutal

watermark of every piece of news from Syria and Iraq.

5.3 The Politics of Incompleteness and Translation

Third, any archive is lacking. Even if I had visited the archives in Syria, Iraq, Egypt and Turkey,

there would also be a pervasive presence of the dominant voices in society. As Michel Foucault

reminds us, the archive is “the law of what can be said, the system that governs the appearance

of statements as unique events.”31 Therefore, the archive is always monitored, controlled and

censored. It is necessarily cosmeticized and incomplete. For example, did the oil concessions in

Mosul involve mass movements of population? Did they involve demolishing houses and

removing the means of survival from the local population? The answers to these questions would

not be found in the archives, at least not in Geneva. Also, where are the women in the legal

archives of the interwar period?32 The discussion of gender in the case studies was drawn from

the mere shreds of information found, reassembled essentially to denote the omissions of the

archives.

The archive also involves acts of translation in both formation and interpretation. If, as Walter

Benjamin claims, “translation is a mode” and “[t]o comprehend it as mode one must go back to

the original, for that contains the law governing the translation: its translatability,” then where is

the “original” of the Geneva archives?33 It could be, among other possibilities, the oral histories

of the people who witnessed these interventions. Although some of these narratives are

documented in petitions and letters, the unwritten and unpolished histories lie outside the scope

of what the Geneva archives, or any archive, could provide. They, therefore, remain lacking and

31 Michel Foucault, The Archaeology of Knowledge and the Discourse on Language, trans. A. M. Sheridan Smith (New York: Pantheon Books, 1972) at 129 (emphasis added). 32 See generally, Gayatri Chakravorty Spivak, “Can the Subaltern Speak?” in Cary Nelson and Lawrence Grossberg, eds. Marxism and the Interpretation of Culture (Urbana: University of Illinois Press, 1988) 271. 33 Walter Benjamin, “The Task of the Translator: An Introduction to the Translation of Baudelaire’s Tableaux Parisiens” in Walter Benjamin, Illuminations (New York: Houghton Mifflin Harcourt, 1968) 69 at 70.

15

infused with different forms of oppression that only add to the exclusions of the international

legal system, much like the interventions of the League and the ILO studied here.

16

Chapter 1 The Discontents of Critical International Law and the Creation Stories of the League of Nations and the International Labour

Organization (ILO)

Before the law

In front of the law there is a doorkeeper. A man from the countryside comes up to the door and asks for entry. But the doorkeeper says he can’t let him in to the law right now. The man thinks about this, and then he asks if he’ll be able to go in later on. “That’s possible,” says the doorkeeper, “but not now’. The gateway to the law is open as it always is, and the doorkeeper has stepped to one side, so the man bends over to try and see in. When the doorkeeper notices this he laughs and says, “If you’re tempted give it a try, try and go in even though I say you can’t. Careful though: I’m powerful. And I’m only the lowliest of all the doormen. But there’s a doorkeeper for each of the rooms and each of them is more powerful than the last.”

Franz Kafka, The Trial (1915)1

This chapter introduces the critical historical accounts of interwar international law most relevant

to this dissertation. It highlights the contributions of the critical stream (also known as the

“Newstream”) and Third World Approaches to International Law (TWAIL) accounts as well as

the missing links in the accounts each offer of this period. In particular, the chapter demonstrates

the foregrounding of the “nationalities question” in these critical international law narratives,

especially in comparison to “class”. It argues for using a specific kind of an intersectional

method used by Himani Bannerji to evaluate international legal interventions, as opposed to the

singular method that overdetermining the “nation” at the expense of other factors. In the chapters

that follow, these missing links and their implications will be explored through comparative

studies of two League of Nations interventions (Alexandretta and Mosul) and one case of one

ILO intervention (Egypt). Therefore, the chapter also recounts the creation stories of both the

1 Franz Kafka, The Trial (London: Dover Publications, 2009) at 154, 155.

17

League of Nations (1920-1946) and the ILO (1919- ), underscoring their foundational political

presumptions at their formative moments.

Critical International Law Narrates Interwar Legal 1Technologies

According to the conventional narrative in international law, self-determination developed from

a political principle in the interwar period to a legal right in the aftermath of World War I.2 It

progressed from Woodrow Wilson’s Fourteen Points in 1918, which was somewhat congruent

with several territorial arrangements negotiated at the peace conference and with the Mandate

system instituted by Article 22 of the Covenant of the League of Nations, to a legal right that

figured among the purposes of the post-World War I United Nations Charter and developed into

a right to decolonization and later in the human rights covenants, into a of peoples to self-

determination.3 To give a well-known example, Hurst Hannum argues that the content of self-

determination is constantly evolving.4 Mainstream international lawyers celebrate the transition

of self-determination from the so-called classical age to the modern one.5

I focus here on the critical/Newstream and the TWAIL strands of critical international legal

history, both of which challenge this liberal progress narrative of an ever-improving system of

international law by looking at the history of interwar international law as both anachronistic6

2 For a critique of the progress narrative in international law, see Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague: T.M.C Asser Press, 2009). 3 Covenant of the League of Nations, 28 April 1919, 13 (1919) AJIL Sup. 128; Charter of the United Nations, 26 June 1945, 1 UNTS XVI, Can TS 1945 No. 7 (entered into force 24 October 1945); International Covenant on Civil and Political Rights, 16 December 1966, 6 ILM 368 (entered into force 23 March 1976). 4 Hurst Hannum, “Re-thinking Self-Determination” (1993-1994) 34 Va. J. Int’l L. 1 at 66. 5 James Crawford, “The Right of Self-Determination in International Law: Its Development and Future” in Philip Alston, ed. Peoples’ Rights (Oxford: Oxford University Press, 2001) 5 at 58; Henry J. Steiner, Philip Alston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals: Text and Materials (Oxford: Oxford University Press, 2008) at 97; See also the classic text on self-determination, Antonio Cassese, Self-Determination of Peoples: a Legal Appraisal (Cambridge: Cambridge University Press, 1995) at 133; For a slightly different approach, albeit making a similar argument, see Jan Klabbers, “The Right to be Taken Seriously: Self-Determination in International Law” (2006) 28:1 Hum. Rts. Q. 186 at 195. 6 The anachronism of international law is in reference to Anne Orford’s recent polemic against international lawyers who denounce the anachronism common among legal historians. According to them, it is “the unreflective of present-day concerns” and is one of the “sins of historical scholarship.” In defense of TWAIL scholars, following Michel Foucault’s idea of writing a history of the present, Orford argues that studying the past of international law

18

and well as a crucial constituent of a critical account of self-determination. The first strand, I will

refer to as “the critical stream/Newstream” and the second is commonly referred to as Third

World Approaches to International Law (TWAIL).

1.1 The Critical Stream

The critical stream’s account of interwar international law has grappled with four main tensions

that characterized the interwar period: (1) the tension between the democratic or the Hobbesian

conception of self-determination and the ethnic or the Rousseauian conception; (2) the tension

between remnants of nineteenth-century legal positivism and a new modernist international law;

(3) the tension between normal conditions for the application of international law and states of

exception when self-determination could be applied; (4) the tension between the school of

sociological or psychological jurisprudence and a “pure theory of law”. Focusing on leading

work by Nathaniel Berman and Martti Koskenniemi, I discuss how the critical stream presents

these main tensions and how these tensions follow a conceptual thread from the interwar cases

studied here to contemporary international law, specifically focusing on the works of Nathaniel

Berman and Martti Koskenniemi.

1.1.1 Rousseauian Self-determination versus Hobbesian Self-determination

Like mainstream accounts, critical accounts revolve around two conceptions of self-

determination: the ethnic and the democratic. The first is often referred to as the “principle of

nationalities”, objective self-determination, or the romantic idea of self-determination, where

there is some “objective” characteristic, such as language or ethnicity is though to define the

nation. This is also known as the Rousseauian conception, where the people are united by

to understand contemporary issues challenges the notion of “the past as history.” See Anne Orford, “The Past as Law or History? The Relevance of Imperialism for Modern International Law” (2012) 2 IILJ Working Paper 1 at 6, 8.

19

belonging to the same “authentic” nation.7 The latter is the “plebiscite principle”, subjective self-

determination, where self-determination is realized through a democratic process, such as

elections or plebiscites. As Koskenneimi argues, this conception is rooted in the political thought

of Thomas Hobbes: the people are united only by belonging to the same constitutional order.8

For Berman, the two standard senses of self-determination are not alternatives to one another, but

interrelated and arguably mutually constitutive of a rejuvenated international law.9 Notably, the

prominent interwar international legal scholar and professor at The Hague Academy of

International Law Robert Redslob rejected the subjective theory as an exclusive theory of self-

determination. Specifically, he rejected its reliance on what could be a “momentary” national

unity or collective devoid of an objective foundation, such as language, history, or ethnicity.10

The technicalities of international law’s creative mechanisms, such as guaranteeing the

“sincerity” of the expressed nationalist sentiments, must be resolved by the legal technicians

assigned to such tasks.11 Relatedly, the legal technicians should also decide on the categories of

people eligible for voting in these plebiscites. Redslob argued that individuals must demonstrate

a genuine connection to the territory as a condition for participating in the plebiscite.12

At the same time, Redslob also rejected the exclusive application of the objective theory of self-

determination without the democratic elements of the plebiscite. The objective factors that

7 Martti Koskenniemi, “National Self-determination Today?: Problems of Legal Theory and Practice” (1994) 43:2 ICLQ 241 at 249; Zoran Oklopcic, “Populus Interruptus: Self-Determination, the Independence of Kosovo, and the Vocabulary of Peoplehood” (2009) 22:4 Leiden J. of Int’l L. 677 at 681-686. 8 Ibid. Impressed by the United Nations’ election-monitoring technologies in the early 1990s, Thomas Franck, a notable mainstream international law scholar, argued that democracy should follow in the footsteps of self-determination and “grow from a shared value to a legal norm.” Self-determination is “democracy’s grandparent.” Thomas M. Franck, “The Democratic Entitlement” (1994-1995) 29 Rich. Law Review 1 at 9. For an important critique, see Susan Marks, “What has become of the Emerging Right to Democratic Governance?” (2011) 22:2 EJIL 507 at 509. Others argue that it is also necessary for a people to feel they are part of a distinct group that shares “objectively determinable common characteristics, e.g. ethnicity, language, history or religion.” Hannum, “Re-thinking Self-Determination”, supra note 4 at 35. 9 Nathaniel Berman, “‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal of International Law” (1993) 106:8 Harv. L. Rev. 1792 at 1812. 10 Ibid. at 1813. 11 Ibid. at 1814. 12 Ibid.

20

collectively define a nation must be formulated by the people concerned in the first place.13

Otherwise, an uncritical and exclusive application of objective self-determination effectively

becomes a cover for imperialist expansion.14

Therefore, Redslob, as Berman argues, provided a general framework for interwar international

legal text. Specifically, the recognition of nationalism by legal reason must inexplicably entail

autonomous and independent legal deliberations that are open to nationalist energies.15 In a

sense, interwar plebiscites provide the perfect illustration of this framework. They were both a

vehicle for the expression of democratic nationalist sentiments and a sophisticated and

innovative legal technique.16 International law was both opened and innovatively rigorous.

Ultimately, the critical stream argues for a more nuanced understanding of self-determination in

which neither ethnic nor democratic self-determination trumps the other, but are both

constitutive of a right to self-determination. As this thesis will show, this fails to interrogate how

the social, or class, dimension was excised from international legal deliberations in the formative

interwar period and beyond.

1.1.2 Nineteenth-Century Legal Positivism and the New Modernist International Law

The new and self-consciously modern interwar international law constituted a political response

to, and a rejection of, the antiquated nineteenth-century legal positivism. Berman claims that

interwar European international legal scholars designed the foundational framework within

which we continue to think about international law’s relationship with nationalism.17 He sees

interwar international legal scholarship and practice as inaugurating “an intellectual revolution in

international legal history.”18 One of his illustrations is the case of the 1947 United Nations

13 Ibid. 14 Ibid. 15 Ibid. at 1816, 1820. 16 Ibid. at 1878. 17 Ibid. at 1794. 18 Ibid. at 1794.

21

Partition Plan for Palestine. The plan, as he explains, entailed all the elements of the interwar

creative legal technologies applied in Europe: a) self-determination through the creation of two

states and a plebiscite; b) minority protection provisions; c) stipulations for individual emigration

and citizenship; d) internationalization of Jerusalem under a “special regime”; and e) an

Economic Union of Palestine.19 Berman notes that these were the same legal techniques

imagined in response to European nationalism after World War I.

In a sense, the Palestine Partition Plan was a natural outgrowth of the Versailles system and the

comprehensive plans created to settle the famous interwar self-determination disputes, namely

the Saar territory, the Danzig and Upper Silesia.20 The settlement regimes for these territories

could be viewed as “the highest achievements of the interwar effort.”21 Therefore, they continue

to act as precedents for current international legal proposals. In casting light on these cases,

Berman aims to reawaken “a sense of wonder” at the moment when nationalism was taken

seriously in international law through the creation of complex and sophisticated plans.22 These

plans were the outcome of a loss of faith in liberal nationalism by interwar international legal

scholars, as well as a rejection of nineteenth century statist positivism.23 The combination of

these two trends marked the creation of a new and a specifically modernist international law.24

This modern international law was both autonomous from and open to the forces of nationalism

by giving it (nationalism) a legal form. And in doing so, interwar international law initiated “a

revolt against [the] positivism” that started in the nineteenth century.25 The “nation” came to be

viewed as a source of revitalization for the postwar European public order.26

19 Ibid. at 1796. 20 Ibid. 21 Ibid. at 1799. 22 Ibid. at 1800. 23 Ibid. at 1801. 24 Nathaniel Berman, “Modernism, Nationalism and the Rhetoric of Reconstruction” (1992) 4:2 Yale J.L. & Hum. 351 at 363. 25 Berman, “‘But the Alternative is Despair’”, supra note 9 at 1805. 26 Ibid.

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1.1.3 Self-Determination… Between the “Normal” and the “State of Exception”

Berman takes the idea of self-determination a step further, arguing that it has developed into a

“richly textured form of argument” that can itself be helpful in resolving some of the basic

jurisprudential dilemmas.27 Self-determination operates through the temporary suspension of or a

state of exception from the normal legal framework. It is “exceptional” because it lies in between

international law and state sovereignty. Under normal circumstances, international law both

complements state sovereignty since it restrains sovereign powers from abusing their privileges.

In doing so, it also protects the system of state sovereignty in global society.28 As Berman puts it:

In the modern discourse of self-determination, these seemingly incompatible challenges function together as a unified form of argument. Rather than taking one side in the age-old debate between positivism and naturalism, sovereignty and law, the discourse of self-determination provides an arena in which they may contend.29

This in-between position of the idea of self-determination made it the subject of long debates

over whether it constitutes a legal right, or a mere political and moral principle.30 However, as

Berman argues, self-determination and its association with exceptionality or abnormality, is

marginal to both systems – legality and morality – “its discourse flourishes in their hostile

encounter.”31

Similarly, Martti Koskenniemi, writing in the aftermath of the fall of the Iron Curtain, argues that

the “abnormality” of the moments of political transformation introduced in the 1920 opinion of

the International Committee of Jurists on the Aaland Islands could prove helpful in assessing

whether claims of national self-determination would be effective in the reconstruction of order in

post-Cold War Europe.32 The landmark interwar opinion by the International Commission of

27 Nathaniel Berman, “Sovereignty in Abeyance: Self-Determination and International Law” (1988-1989) 7:51 Wis. Int’l L. J. 51 at 56. 28 Ibid. at 56. 29 Ibid. at 58. 30 Ibid. at 60. 31 Ibid. 32 These islands in the Baltic Sea became a bone of contention between Finland, and Sweden, and the resolution of their status in 1921was on of the first self-determination questions managed by the League of Nations.

23

Jurists on the autonomy of the Aaland Islands often acts as an anchor for discussions about the

international legal management of interwar European settlements. Contemporary international

lawyers have used the Aaland Islands case as confirmation that self-determination applies only to

cases of overseas decolonization cases under normal circumstances. However, the Committee

held that although there was ordinarily no right to self-determination, during times of radical

political transformation that threaten the existence of the state, self-determination could become

applicable to re-establish the stability and the normalcy of the state.33

For Koskenniemi, there are two senses of national self-determination. First, self-determination is

more than a political principle:

it is a legal-constitutional principle that claims to offer a principal (if not the only) basis on which political entities can be constituted, and among which international relations can again be conducted “normally”. The centrality of the State to the political order becomes comprehensible only if we regard it as the formal, political shell for which nationhood provides the substance.34

The second sense of self-determination is not expressed in the regular functioning of state

sovereignty:

[It is] in the existence and free cultivation of an authentic communal feeling, a togetherness, a sense of being “us” among the relevant group. If, in extreme cases, this may be possible only by leaving the State, then the necessity turns into a right…. This is the more revolutionary sense of self-determination.35

This more revolutionary sense, he argues, was precisely the side of self-determination that the

International Committee of Jurists in the Aaland Islands case attempted to undermine.36

Therefore, Koskenniemi sees that an international law of self-determination cannot be separated

from the political priorities in specific temporal and geographical contexts.37 International law,

33 “Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions” (October 1920) LNOJ, Special Supplement No. 3; Martti Koskenniemi, “National Self-determination Today?”, supra note 7 at 246. 34 Ibid. 35 Ibid. 36 Ibid. at 247. 37 Ibid. at 264.

24

he concludes, should not be viewed as a standard template of predetermined substantive

solutions, but as a procedure for facilitating context-based modifications.38

Berman complicates this position further reminding us of the possibilities and potentialities of

this new modernist international law that developed in the interwar period. The Aaland opinion,

he argues, draws a connection between self-determination and the new international legal

competence, which relies on a detailed historical analysis of the specific context.39 Therefore, in

the Aaland Islands’ case the application of international law depended on a contextual and

historical study of whether the prevailing situation in the islands was “of a definite and normal

character,” or whether it was of an exceptional or an undeveloped one.40 Hence, for Berman,

rather than deciding a strictly legal or jurisdictional question, the opinion narrates the birth of a

new modern international law that can account for nationalist passions and for the birth of

states.41

1.1.4 “Impure” Sociology and “Pure” Law

Oscillating between faith in new legal orders and panic from irrational nationalist passions,

postmodern international lawyers, as Berman claims, “remain alternately fascinated and repelled

by mythic images of national identity.”42 Because “we can not afford to be daunted no longer,”

he calls for casting new light on interwar international law because it raised the same questions

that international lawyers still grapple with today.43 One way to approach these questions is to

look at the tension between the sociological or psychological school of jurisprudence and the

school of the “pure theory of law”.44

38 Ibid. 39 Berman, “Sovereignty in Abeyance”, supra note 27 at 74. 40 Ibid. 41 Ibid. at 75. 42 Nathaniel Berman, “A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework” 33:2 Harv. Int’l L. J. 353 at 356. 43 Ibid. 44 Ibid. at 357.

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The sociological school of jurisprudence, represented by Dietrich Schindler in Berman’s

account, accords grassroots nationalist forces a significant influence on the operation of

international law.45 While refraining from weakening the state powers present in Wilsonian self-

determination, it struck a balance between a complete deference to nationalist passions and

radical Wilsonianism, on the one hand and deference to state positivism, on the other.46

The “pure theory of law” school, famously associated with legal theorist Hans Kelsen, holds that

the potential for the disintegration of principles such as the “nation” or “religion” demonstrates

the flaws of the sociological theory of law. The latter theory, according to Kelsen, does not

explain how law could maintain its efficacy in light of these subversive passions. Giving

nationalism a legal form would destroy the independent integrity of law.47 Therefore,

international law is neither compatible with “the traditional myth of sovereignty, nor with such

newer myths as that of the Volksgeist.”48

For Berman, neither the “impure sociology” nor the “pure law” theory could provide a

convincing account of the interwar tensions, which continue to bear on international law. He

argues that international lawyers must conceive of national identity in a way that would not deny

“its passionate hold on us”, as well as not seek to repress that passion with the appeal of legal

rationalism.49 His suggestion, typical of the postmodern strand of the critical stream, is an

alternative conception of nationalist passion as neither simple irrationality nor the foundation of

what is authentic and genuine, but the multilayered, hybrid, overlapping nature of group

identity.50

In this dissertation, I build on and supplement the critical stream, yet depart from it in three

ways. First, although important, the critical stream’s emphasis on the creativity of new interwar

45 Ibid. at 362. 46 Ibid. 47 Ibid. at 363. 48 Ibid. (paraphrasing Kelsen). 49 Ibid. at 378. 50 Ibid.

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legal technologies as “fascinating moments” in international legal history that had an enduring

impact on international law misses a serious analysis of their relationship with empire, capital

accumulation, patriarchy and class society. The specificities of these technologies are central to

the cases discussed here. In keeping with Berman’s and Koskenniemi’s critical insights, I

explore how the interventions by the League of Nations in Alexandretta and Mosul and the

ILO’s technical assistance mission in Egypt entailed the interplay of objective and subjective

self-determination (or ethnic and democratic self-determination). The administration of

plebiscites and commissions of inquiry also entailed discussions about the genuineness of

national declarations and establishing “authentic” connection to the territory. And the ILO’s

technical assistance mission to Egypt shows the underlying politics of the work of “legal

technicians” that Berman refers to in light of Redslob’s ideas. However, I further demonstrate

how these innovative technologies of interwar international law (plebiscites, commissions of

inquiry, international administration, minority protection, etc.) were mired in the politics of

empire, capital accumulation, patriarchy and class society. In studying the micro politics of how

these technologies were applied in the three episodes of the League’s intervention in

Alexandretta and Mosul and the ILO’s technical assistance missions to Egypt, the following

chapters highlight how these modern and innovative legal technologies were inescapably linked

to forms of oppression.

Second, critical interwar accounts of self-determination and postwar settlements were mainly

focused on the nation and the problem of nationalities. As stated previously, both ethnic and

democratic self-determination played an important, if not the main, role in the workings of

interwar legal settlements. However, there were other fundamental factors that were inseparable

from any rigorous analysis of nationalism in international law during the interwar period. Most

important was the intersectionality between social class, the ethnic nation and gender. This is

clearly manifested in the three cases discussed here, especially in social class intersected with the

nation.51 Specifically, the cases show that the “nation” as a single unit of analysis is extremely

51 Insofar as a focus on social class and not gender might be interpreted as the typical omission of “gender,” I note that this omission was largely a reflection of the fact that both the League of Nations and the ILO archives make only vague and limited references to any “gender-related” issues. However, this omission is also registered here as part of the politics of the archives and as typical of the patriarchal structures of international institutions.

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limited in truly reflecting the idiosyncrasies and particularities of the interventions made by

international legal institutions during this period.52

Third, the critical stream account narrates a story that happened in Europe. For Berman, it was

only with the 1947 Partition Plan for Palestine that these technologies finally arrived in the

Middle East. However, as the cases in the following chapters show, these technologies were part

and parcel of the post-World War I settlements for the semi-colonial Middle East. Berman

juxtaposes European self-determination to Asian and African self-determination. He

“specifically abstained” from giving an account of self-determination in interwar Asia and

Africa.53 The result is to leave the “non-European” as an undifferentiated whole, without

distinguishing periphery from semi-periphery, and to imply that these technologies were

uniquely European. In addition to countering both, this thesis gestures towards what Hannah

Arendt famously called the boomerang effect of imperialism, that is, it suggests that the colonial

cases under study here shaped the very discourses of international law in the metropole.54

1.2 Third World Approaches to International Law (TWAIL)

While the general critical stream focuses on European experiments, TWAIL focuses on changing

the locus of international legal scholarship from the core to the periphery, or to “Third World”

experiments. In that sense, it attempts to write race in international legal concepts, such as

sovereignty and rights.55 These concepts, including self-determination, statehood and the nation-

state, are rooted in the European ethos.56 Issues pertaining to power dynamics and material

distribution have been historically connected to the production of international legal concepts

52 Other variants within the critical stream, such as Karen Knop’s critical account, have however emphasized how self-determination looks different when “diversity” is considered as part of the analytical framework. Knop argues that many subaltern groups, such as indigenous people or women are often excluded from the self-determination story. Karen Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002) at 3, 373. 53 Berman, “‘But the Alternative is Despair’”, supra note 9 at 1901. 54 Hannah Arendt, The Origins of Totalitarianism (New York: Houghton Mifflin Harcourt, 1973) at 155. 55 Antony Anghie, “What is TWAIL: Comment” (2000) 94 ASIL Proc. 39 at 39. 56 Luis Eslava & Sundhya Pahuja, “Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law” (2012) 45:2 J. Law & Pol. Afr., Asia and Lat. Am. 2 at 3.

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since the colonial encounter.57 TWAIL is, therefore, first and foremost a political project.58 One

of its main goals is to study the history of the colonial relationship in international law to

demonstrate why the discipline’s seemingly emancipatory initiatives do not always bode well for

the Third World.59 Additionally, TWAIL aims to transform the language of international law

from a language of oppression to a language of emancipation and justice.60 This will happen

when international law is able to reflect the struggles and aspirations of the Third World and

therefore promote a genuinely global and just international law. TWAIL would reclaim

international law’s universality, which was historically intertwined with colonial expansion.61

TWAIL’s account of the interwar period, therefore, is part of this political project of writing

empire into the history of international law. The shape and character of international legal

institutions created in the aftermath of World War I, according to TWAIL scholarship, had been

profoundly shaped by colonialism.62 For TWAIL, the Mandate system and the minority

protection regimes were the technologies designed by the League to manage the relationship

between culture and sovereignty.63 The international legal “technology” of minority protection,

for instance, is not a subject of “fascination” for TWAIL scholars, but a reminder of how empire

and tutelage shaped the very mechanisms of interwar international legal institutions. In TWAIL’s

account, the new interwar international law devoted itself to furthering “social goals”.64 “Far

from being autonomous,” international law was shaped by the social developments that reflected

the political realities of the post-World War I period.65 Therefore, for TWAIL scholars, as for

57 Ibid. at 6, 7. 58 Antony Anghie, “TWAIL: Past and Future” (2008) 10:4 Int. C. L. Rev. 479 at 480. 59 Anghie, “What is TWAIL: Comment”, supra note 55 at 39. 60 Antony Anghie & B. S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2 Chinese JIL 77 at 79. 61 Ibid. at 101. 62 Antony Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations” (2002) 34:3 N.Y.U. Int’l L. & Pol. 513 at 516. 63 Antony Anghie, “Nationalism, Development, and the Post-Colonial State: The Legacies of the League of Nations” (2006) 41:3 Tex. Int’l L. J. 447 at 447. 64 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004) at 126. 65 Ibid. at 128.

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Newstream scholars, the rejection of nineteenth-century legal positivism signalled the creation of

new international legal technologies, but these technologies, in seeking to further the “social

goals” of nursing and protecting destitute nations, effectively advanced the goals of empire

through international law.66 As Anne Orford argues, TWAIL is “an intervention that challenges

the place of the past,” moving it from the core to the periphery through highlighting the colonial

history in the structure of the development of international legal argument.67

The idea of trusteeship embodied in the Mandate system was a revival of a long forgotten

doctrine envisioned by early modern legal scholars like Francisco de Vitoria during the Spanish

colonization of the Americas.68 While the Mandate system had nineteenth-century antecedents,

notably through ideas such as the “dual mandate” espoused by the British colonial administrator

Lord Lugard, it took this institutional form only with the creation of the League of Nations.69 The

mandates played the same economic role as the colonies for the metropolis – a source of raw

materials and a market for the “democracies” of the day whose populations increasingly claimed

a right to work.70 This appears vividly in the imperial rivalry over Iraq’s oil reserves, which

essentially meant a re-drawing of the boundaries of the Syrian and Iraqi provinces of the late

Ottoman Empire.71 Unlike the minority treaty regime applied in Europe, the Mandate system

sought to transform cultures as opposed to preserving them. The policy adopted by the

66 Ibid. at 119. 67 Orford, “The Past as Law or History?”, supra note 6 at 3. 68 Antony Anghie, “‘The Heart of My Home’: Colonialism, Environmental Damage, and the Nauru Case” (1993) 34:2 Harv. Int’l L.J. 445 at 454, 455. For a close study of the Spanish contribution to international law, see Martti Koskenniemi, “Empire and International Law: The real Spanish contribution” (2011) 61:1 U.T.L.J. 1. 69 Lord Lugard’s idea of the “dual mandate” justified nineteenth century trusteeship. His main argument was that Europe could not possibly develop Africa out of charity; it has to benefit in return from its natural resources. According to Lugard, the wealth of the earth is the common inheritance of all men. See William Bain, The Empire of Security and Safety of the People (London: Routledge, 2006) at 193. 70 This was the view expressed by Lord Lugard who later became a prominent member of the Permanent Mandates Commission (PMC). Anghie, “Nationalism, Development and the Post-Colonial State”, supra note 63 at 453; Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2013) at 50, 71. 71 Anghie, “Colonialism and the Birth of International Institutions”, supra note 62 at 262.

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Permanent Mandates Commission (PMC) was to let the smaller communities be assimilated into

the more dominant and economically developed communities.72

Additionally, the League promoted the idea of self-government through its own scheme of

preparing the mandates “to stand alone”.73 Criticism of the colonialism of old Europe led the

League to use the principle of self-government, to assert that the Mandate system was not a

direct extension of colonialism.74 The potential self-determination of the Mandate territories,

while clearly not remedying the embedded inequalities of cultural subordination and economic

exploitation within international law, was presented as the League’s alternative to colonialism.75

The idea behind this interwar innovation was to transform the mandate territories into new states

that fitted the new post-World War I European imagination of the global public order. TWAIL

scholarship notes that international law and its institutions in the interwar period were actively

involved in the creation of the sociological, socio-economic and political structure of the

juridical nation-state.76 Specifically, this project went hand in hand with the gradation of

sovereignty in the Mandate System, whereby Mandate territories were divided into A, B and C

mandates depending on their stage of political and economic development.77 Through this model,

“the Mandate System further acquired the form of a fantastic universalizing apparatus” that

ensured that the same ideals of self-governance and the creation of sovereign nation-states would

be applied whether it was in Africa, or in the Middle East.78 This project was elaborately

implemented in all its socio-political details by the bureaucrats of the League.79

72 Anghie, “Nationalism, Development and the Post-Colonial State”, supra note 63 at 454. 73 Ibid. at 448. 74 Anghie, Imperialism, Sovereignty and the Making of International Law, supra note 64 at 140. 75 Anghie, “Colonialism and the Birth of International Institutions”, supra note 62 at 518. 76 Anghie, Imperialism, Sovereignty and the Making of International Law, supra note 64 at 148. 77 Ibid. 78 Ibid. 79 Ibid. at 149.

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The idea of the promotion of self-government for the ultimate “well-being and development” of

the mandated territories was interpreted primarily in economic terms.80 Therefore, there was a

managerial preoccupation with the economics of the mandated territories, resulting in what

Anghie refers to as the “economization of sovereignty.”81 Large infrastructural investment

projects, such as railroads and mining by European companies, became central to this process.82

Additionally, labour emerged as a central aspect of social policy. Labour, according to Anghie,

“provided the League with a means of entering into the very being of the native, of disciplining

and civilizing him.”83 The welfare of labour not only served “the well-being of the native”, but

also served to further “the economic progress of the country, which is an essential condition of

general prosperity,” as stipulated in the Draft Convention on Slavery.84

Despite this scathing account of the workings of interwar international law, some TWAIL

scholars are invested in the transformative potential of international law and its use as a method

of constraining power relations.85 Their political project of exposing international law’s

ideological discourse signals also a commitment to take the emancipatory potential of

international law seriously. International law, they argue, has real and material implications for

the people of the Third World. Therefore, international law remains a powerful tool to be

reclaimed by the wretched and the dispossessed of the earth.86

Notwithstanding the divisions within the TWAIL literature, two main themes characterize

TWAIL scholars’ account of interwar international law. First, international law and its

institutions, including its novel interwar technologies of commissions of inquiry, minority

protection and so on are inseparably connected to the oppressive history of colonialism.

80 Ibid. at 156. 81 Ibid. at 157. 82 Ibid. at 159. 83 Ibid. at 165. 84 Ibid. at 166. 85 Antony Anghie and B. S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts”, supra note 60 at 101. 86 As such they challenge neorealist critiques, such as that of Stephen Krasner, who diagnoses the hypocrisy of international law regarding sovereignty, but exonerate imperialism. See Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999).

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Therefore, the civilizational discourse and the gradation of sovereignty were central features of

the innovations of interwar international law. Second, the idea of self-government that came as a

corollary to the gradation of sovereignty was used by the League of Nations as a tool both for the

economization of sovereignty and for modernization and enhancing productivity in the mandate

territories. This was how labour featured as a central aspect of control and supervision by the

mandate authorities and the PMC.

I accept these two main themes almost in their entirety. The following chapters are in fact rooted

and informed by these same ideas. However, my case studies reveal a number of missing links

within TWAIL scholarship. First, while TWAIL scholars’ emphasis on the experiences of the

Third World acts as an important point of comparison and reveals the stark differences between

the core and the periphery, their methodology does not capture for the nuances of the experiences

of the semi-colonial Middle East.87 During the interwar period, the “Near East” witnessed

international legal interventions that entailed the deployment of European technologies, such as

commissions of inquiry, plebiscites and minority protection. These interventions also entailed

large economic deals of investment projects, capital accumulation through oil concessions and a

direct involvement in class relations as part and parcel of the “problem of nationalities”.

Second, while TWAIL scholarship addresses the economics of international legal interventions,

it does not specifically identify “social class” – or, to state it more boldly, “class war” - as both a

distinct and a constitutive aspect of the interwar interventions. Notably, B. S. Chimni, who

arguably represents a different and a more left-leaning strand within TWAIL scholarship,

maintains that international law helped to create a global social formation that facilitates the

realization of the interests of what he calls a Transnational Capitalist Class (TCC). The TCC

influences state policies and controls some of the state’s structures. This transnational class seeks

sought the creation of a normalized system of international laws and regulations that would

support the formation of an integrated global society. As Chimni argues, international lawyers

have been instrumental in the realization of the goals of the TCC at the expense of the

87 See generally, Umut Öszu, Formalizing Displacement: International Law and Population Transfers (New York: Oxford University Press, 2015).

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Transnational Oppressed Class (TOC).88 Nonetheless, he stresses the importance of recognizing

that a “class approach” to international law should not be determinative. He grants that

international law has a certain degree of autonomy from the dominant class’s interests and

concedes that there are certain foundational principles in international law (such as the principle

of non-use of force) that are of crucial significance to subaltern and marginalized social groups

in society and to weak states.89 Therefore, a class approach to international law must be linked to

a theory of resistance that focuses on the struggles of the TOC against unjust laws. Chimni ends

his argument with a call for a “new and complex internationalism” that comprises old and new

social movements, state and non-state actors, and therefore would not be easily manipulated and

controlled by states.90 In other words, Chimni calls for a more inclusive international legal

system that includes the oppressed class in its representation and in its content – a more complex

internationalism.

Chimni’s approach is valuable and unique within the literature of TWAIL scholarship and

critical international law more broadly. It centers on human agency and resistance to the unjust

international legal system. However, while he argues for a more inclusive international law, he

does not address the impact and reach of the legal form itself through the specificities of internal

class relations as distinct from the TCC alone.91 His account does not address how international

law and institutions intervened in class relations at a specific time and place. And this is the third

missing link in TWAIL scholarship more broadly that the cases studied here demonstrate.

Specifically, through the micro politics approach, they focus on these interventions not only as

“legal” interventions, but as legal interventions in the context of a specific social history is and

archival narratives.

88 B.S. Chimni, “Prolegomena to a Class Approach to International Law” (2010) 21:1 EJIL 57 at 68. 89 Ibid. at 75, 76. 90 Ibid. at 77. 91 The Soviet and Marxist jurist, Evgeny Pashukanis referred to this approach as “left positivism”, because it highlighted the social and economic interests behind the legal system. However, he argued that this method failed to address why these specific interests were served by the legal form. See China Miéville, Between Equal Rights: A Marxist Theory of International Law (Chicago: Haymarket Books, 2006) at 83 (paraphrasing Pashukanis).

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By missing the study of law as specifically and intertwined with class relations at specific

moments in specific spaces in history, Chimni’s approach leads to a detailed yet generic

blueprint to dispose of imperialism while remaining under capitalist society and governed by

class relations.92 We live in a capitalist society, but this does not mean we cannot end

imperialism as a first step toward a politics of emancipation in international law, he argues. This

leads to the fourth missing link in TWAIL’s scholarship: a neglect of social class as the first step

to approaching international law, and specifically international labour law, through an

intersectional analysis. Here, as distinct from the reliance of some TWAIL scholars on the

concept of intersectionality as developed through Critical Race Theory (CRT),93 I adopt Himani

Bannerji’s concept of intersectionality in which race, class and gender are inseparable and

constitutive aspects of identity.94 Bannerji asks the question that both Marxists and Critical Race

Theorists did not directly pose, namely how the organization of race (or racism) is a fundamental

way of forming class?95 And this is most vividly manifested in the case studies where certain

ethnicities corresponded with certain classes and where privileging one national project (like the

Iraqi over the Kurdish) created new class hierarchies with power over state governance and

control over natural resources. Bannerji’s intersectionality does not foreground race as is the case

with CRT, nor does it forground gender, nor class as would be the case of many Marxists (as will

be discussed in the Conclusion). For her, the three are “all together and at the same time,” and

from a materialist perspective. She combines Marxist feminism, black feminism and critical race

theory. Using this approach, I analyze international law’s oppressive structures not through a

single lens, such as “nation” or “gender”, but through a complex lens that captures international

92 B.S. Chimni, “Global Futures: Fragments of a Vision” (Keynote address at Law, Culture and Critique Conference, Osgood Hall Law School, 11 May 2013, Toronto). 93 See generally, Makau Mutua, “Critical Race Theory and International Law: The View of an Insider-Outsider” (2000) 45:5 Vill. L. Rev. 841; Antony Anghie, “LatCrit and TWAIL” (2011) 42:3 Cal. W. Int’l L. J. 311. 94 “I began then my attempts to think “race” and class in and through each other, only to realize that a fundamental component, namely gender, was missing. I began to see that my sex as a woman, gendered division of labour, patriarchal social forms, sexist experiences, could not be omitted from how my signified skin and pre-scribed class… were being read and organized. My gender, “race” and class are not separate persona or persons – they make and re-present all of me in and to the world I live in. I am – always and at once – there all together, for whatever that is worth.” See Himani Bannerji, Thinking Through: Essays on Feminism, Marxism and Anti-Racism (Toronto: Women’s Press, 1995) at 12. 95 Abigail B. Bakan & Enakshi Dua, eds. Theorizing Anti-Racism: Linkages in Marxism and Critical Race Theories (Toronto: University of Toronto Press, 2014) at 124.

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legal interventions’ relationship with nations, social classes and gender. It urges us to address

false separations and binaries between form and substance, between empire and capital and

between law and oppression.

Finally, and this is the fifth missing link in TWAIL’s scholarship, the outcome of my case

studies and their details and intricacies do not inevitably lead to a “return to international law”. I

do not share the reformist part of TWAIL’s agenda that seeks to transform international law into

a progressive field that can further the interests of Third World and oppressed people around the

world. On the contrary, the case studies lead me to think of international law as something akin

to what Luis Eslava and Sundhya Pahuja have called the “materiality of international law”.96

They argue that TWAIL needs to move beyond international law as merely an ideological project

with material consequences, to examine international law as a material project in and of itself.97 I

move beyond this here, and argue that not only is international law a material project in itself, it

is only redeemable when other structural and material forms of oppression – imperialism,

capitalism and patriarchy – are dismantled by something that might lie outside of the law.98

1.3 Summary

To summarize, both the critical stream/Newstream and TWAIL scholarship inform the

theoretical foundation of this dissertation. However, the following chapters vividly demonstrate

the missing links in their accounts of interwar international law.

First, the case studies move beyond the traditional preoccupation with the “problem of

nationalities” or nations and demonstrate the value of adopting an intersectional approach in

analyzing international legal interventions. More specifically, by focusing on the ILO’s

intervention in relation to the League’s, the dissertation pits “class” against “nation”. It opens up

the domain of traditional units of analysis in international law (states, nations, international

organizations) to include “class” as a distinct analytical unit in international legal history. The

96 Eslava and Pahuja, “Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law”, supra note 56 at 10. 97 Ibid. 98 Walter Benjamin, “A Critique of Violence” in Marcus Bullock & Michael W. Jennings, Walter Benjamin: Selected Writings, Vol. I (1913-1926) (Cambridge: Harvard University Press, 2002) 236 at 242.

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cases also show how gender also intersection with nations and classes, such that each category

on its own could not provide an adequate account of identity formation.

Second, the cases show how the networks of relationships and the mechanisms or innovative

technologies of the League and the ILO are mutually constitutive of the politics of empire,

capital and class relations in the region studied here.

Third, the cases narrate a specifically semi-colonial story of interwar international legal

interventions that both responds to the critical stream’s European story and complements

TWAIL’s core-periphery story. It contributes to an emerging body of literature on the semi-

periphery in international law.99

Fourth, my reliance on primary archival material distinguishes my research from both the

Newstream and TWAIL scholarship.100 My research is conceived as a series of separate but

institutionally and regionally connected studies. The details of the cases show how the concepts

of critical international law can illuminate legal practice at a specific time and place, and how,

conversely, the unfolding cases in the Middle East shaped the way that the League of Nations

approaches developed in the interwar years. Using social history and narratives of the archives,

the dissertation contextualizes the intervention via a historical method that shows the

anachronism of international law. The cases compare the nature of the League interventions to

those of the ILO, showing how each institution had a single analytical frame, prioritizing nation

in the case of the League and prioritizing “class” (albeit not necessarily the working class per

see) in the case of the ILO.

Finally, this research concludes with the larger questions that continue to bear on international

law. Specifically, the outcomes of the cases studied here do not inspire the reformist return to

international law that some strands of TWAIL scholarship suggest, nor an investment in

99 See, for example, Arnulf Becker Lorca, “Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation” (2010) 51:2 Harv. Int’l L. J. 475; Umut Özsu, “Agency, Universality, and the Politics of International Legal History” (2010) 51:2 Harv. Int’l L. J Online, available at: http://www.harvardilj.org/2010/10/online_52_ozsu/ 100 An important exception for the extensiveness of its sources is David Kennedy’s definitive and influential article, “The Move to Institutions” (1987) 8:5 Cardozo L. Rev. 841.

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influencing international legal technologies toward progressive ends that law’s inherent

indeterminacy makes possible, as the critical stream implies. Rather the outcomes lead me to

advocate a critical distance and the assessment of the relationship between forms of oppression

and the international legal form, functionalized through the interventions made by international

legal institutions at constitutive moments such as the interwar period and in specific regions

endowed with some form of agency such as the semi-periphery. In that sense, the cases promote

a move toward a radical critique of international law informed by a materialist and an

intersectional analytical framework.

Before turning to the cases, the following section gives a brief account of the creation stories of

the League of Nations (1920-1946) and the ILO (1919-) to introduce the political presumptions

underlying these institutions at their moments of conception. More specifically, the following

section gives a historical and structural background of the roles imagined for each to illuminate

the purpose of the cases presented in the subsequent chapters. It will also situate the theoretical

interventions discussed in the preceding section in a study of the League and the ILO.

International Legal Institutions and the Interwar Period 2

2.1 The League of Nations

It is not sufficient for the League merely be a sort of deus ex machina, called in very grave emergencies when the spectre of war appears; if it is to last, it must be much more. It must become part and parcel of the common international life of States, it must be an ever visible, living, working organ of the polity of civilization. It must function so strongly in the ordinary peaceful intercourse of States that it becomes irresistible in their disputes; its peace activity must be the foundation and guarantee of its war power.101

This was Jan Smuts, the British and South African statesman, architect of the League of Nations’

mandate system and an important actor in the politics of racial segregation in South Africa.102

Smuts laid out in a small pamphlet published in 1918 his vision for the League of Nations. He

outlined its main goals and principles, its structure, functions, internal organization and its

101 Jan C. Smuts, The League of Nations: A Practical Suggestion (Toronto & New York: Wyman and Sons Ltd, 1918) at 8. 102 See Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009) at 28-67.

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overall aim of furthering peaceful change after the end of the Great War. In this pamphlet, Smuts

was able to capture the essence of what later became the actual functions of the League of

Nations. In a sense, as Smuts explained, the empires of the past were “leagues of nations’; they

were keeping the peace among their different nations.103 Unfortunately, they were doing so on

the basis of repression and not freedom, something that the new League of Nations would refrain

from doing. If the League were to govern on the basis of inequity, it would be doomed to fail. It

should follow the model of the British Commonwealth of Nations, which he called “the only

embryo league of nations” because it was founded upon principles of national freedom and

political decentralization.104

I highlight here two of the main principles that Smuts imagined would define the workings of the

League of Nations. The first was the principle of self-determination. It should be applied “as far

as possible,” he argued.105 No mandatory state should be appointed as a trustee of a people or

territory without their prior consultation and acceptance. The people of the territory would not

only determine the form of their internal self-government, they would also choose their

mandatory state.106 There would, however, be exceptions to this principle of self-determination

in cases such as Palestine, Armenia and Kurdistan, where an autonomous regime could not be

adopted at the beginning. Therefore, consultation with the people of the territory over the

potential mandatory power would not be possible.107 The second main principle was the open

door policy. The League of Nations would guarantee equal economic opportunity for all

members of the League. This would ensure that no Mandatory Power would create favourable

clauses in its agreements with its mandated territory.108 Such elaborations led English jurists to

compare the League to a corporation.109

103 Smuts, The League of Nations, supra note 101 at 9. 104 Ibid. 105 Ibid. 106 Ibid. at 19. 107 Ibid. at 20. 108 Ibid. at 22. 109 Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1954) at 247, 248.

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For Smuts, the creation of the League of Nations represented the “new humanity” imagined for

the post-war period:

For there is no doubt that mankind is once more on the move. The very foundations have been shaken and loosened, and things are again fluid. The tents have been struck, and the great caravan of humanity is once more on the march. … A steadying, controlling, regulating influence will be required to give stability to progress, and to remove that wasteful friction … These great functions could only be adequately fulfilled by the League of Nations.110

For international lawyer Lassa Oppenheim, who represented the then-dominant school of legal

positivism, the creation of the League of Nations was an important development that could

secure a more lasting peace even as it remained a subject of suspicion.111 However, he celebrated

the universality of the demand for the League of Nations. This demand was present not only in

the Allied countries but also among the Central Powers.112 As a legal positivist, Oppenheim also

emphasized that it would be a League of states not nations.113 Unlike Smuts and other interwar

international lawyers, he imagined a very limited role for the League. Its main functions would

be: a) the prevention of the outbreak of war because of a legal dispute through the creation of an

International Court of Justice; b) the prevention of the outbreak of war because of a political

dispute through the creation of an International Council of Conciliation; c) the stipulating of

sanctions for the enforcement of the aforementioned rules.114 Therefore, the main motivation for

Oppenheim, as for many succeeding interwar international lawyers, was the maintenance of

peaceful transition.

Interwar international lawyers invoked the legacy of Spanish international lawyers as the true

founders of international law by reviving Vitoria’s idea of a community of all nations regardless

of race, geography and religion in the new League of Nations project.115 American international

110 Smuts, The League of Nations, supra note 101 at 71. 111 Lassa Oppenheim, The League of Nations and Its Problems (London, New York & Bombay: Longmans, Green and Co., 1919) at 5. 112 Ibid. at 11, 12. 113 Ibid. at 13. 114 Ibid. 115 Wilhelm Grewe, The Epochs of International Law, tr. and rev. Micheal Byers (Berlin: Walter de Gruyter, 2000) at 147 (paraphrasing James Brown Scott).

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lawyer Elihu Root argued that public opinion against war did not suffice to bring about peaceful

transition: “A mob, however unanimous, can destroy but it cannot construct. What is

everybody’s business is nobody’s business. To get things done some human agency must be

designated to give effect to the general desire that they be done.”116 It was, therefore, up to

international legal institutions, specifically the League, to affect public opinion against war and

promote the maintenance of international peace.117 Likewise, Hersch Lauterpacht considered

peaceful transition to be based on the submission of states to a legal duty decreed by a competent

international law organ: “It is the existence of a legislature imposing his fiat upon the dissenting

State.”118 This supra-legislator or “competent international law organ” would be the League. Sir

John Fisher Williams argued for the creation of an orderly system for change.119 He closely

studied the Covenant of the League and saw that peaceful change could be forwarded by the

international legal system and by the realization of the purposes of the Covenant.120 All

directions in international law circles pointed to the creation of a new League of Nations.

With competing plans from Jan Smuts, President Woodrow Wilson and the British lobby, the

League of Nations came into being in 1920. The League was comprised of the Council, the

Assembly and the Secretariat. At the last minute, four states that had not been considered part of

the Great Powers were included in the Council. By 1938 the number of these states reached

eleven.121 The framers of the Covenant of the League of Nations intended the Council to act as

an Executive Committee that would represent the whole body of members. The Council would

be responsible for the following: a) the minorities problem as imagined by the Concert system; b)

the guarantee of territorial integrity and plans for the reduction of armaments as per the Monroe

Doctrine system; c) disputes submitted to the League and the application of military sanctions to

116 Elihu Root, “Steps Towards Preserving Peace” (1925) World Peace Foundation Pamph. Series 199 at 201. 117 Ibid. 118 Hersch Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht (Cambridge: Cambridge University Press, 1975) at 444. 119 Anthony Carty & Richard A. Smith, Sir Gerald Fitzmaurice and the World Crisis: A Legal Adviser in the Foreign Office (1932-1945) (The Hague: Martinus Nijhoff Publishers, 2000) at 201. 120 John Fisher Williams, Some Aspects of the Covenants of the League of Nations (London: Oxford University Press, 1934). 121 Alfred Zimmern, The League of Nations and the Rule of Law (1918-1935) (London: Macmillan and Co., Limited, 1945) at 459.

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states that violate the Covenant as imagined in the The Hague Conference system; d) reporting to

the various agencies as stipulated under the system of World Services; e) convening when there

was a war or a threat of war as embodied in the system of the Hue and Cry or the principle of

collective security.122

President Woodrow Wilson was asked by the Council of the League to summon the first meeting

of the Assembly of the League, which was held in November 1920.123 It was agreed that the

Assembly would meet annually.124 It was responsible for the general supervision of the overall

work of the League and its finances, and would provide a forum for discussion of world

affairs.125 At its first meeting, the Assembly created six committees to manage issues from the

so-called “technical” work of the League (such as financial and economic questions) to

disarmament, social and humanitarian questions and finally “political questions” (the mandates,

minorities and the admission of non-members).126 Finally, the Secretary-General, who

represented the Secretariat, acted as a diplomatic mediator on the most confidential and delicate

issues of international politics, as well as an administrator and manager of the League’s

employees.127

The other major function of the League was the management of the Mandate System as

stipulated in Article 22 of the Covenant:

To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

122 Ibid. at 462, 463. 123 George Grafton Wilson, The First Year of the League of Nations (Boston: Little, Brown & Company, 1921) at 19. 124 Zimmern, The League of Nations and the Rule of Law, supra note 121 at 471. 125 Ibid. 473-477. 126 Ibid. at 473. 127 Ibid. at 481.

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The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.

Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory….128

Again, the celebrated South African statesman General Smuts was credited with inspiring and

framing this article.129 President Wilson switched to Smuts’s proposals for the mandates from his

own initial plan, but added a provision that was not only not in Smuts’s proposal, but went

against its spirit.130 Smuts had originally thought that the German Colonies in the Pacific Ocean

and Africa were “inhabited by barbarians … to whom it would be impracticable to apply any

idea of self-determination in the European sense.”131 Wilson, to the contrary, extended Smuts’s

plan from the territories formerly belonging to Russia, Austria-Hungary and Turkey, to the

German colonies.132 Therefore, in the final text of the Covenant, “A Mandates” concerned those

territories formerly belonging to the Turkish Empire. The Mandatory Power would provide the

necessary administrative advice and assistance to these territories.133 “B Mandates” concerned

territories in Central Africa. These mandate treaties gave more powers to the Mandatory state in

its administration of the mandated territory.134 “C Mandates” concerned territories such as South

West Africa and the German Islands in the Pacific and were to be directly governed by the laws

128 Covenant of the League of Nations, 28 April 1919, 13 (1919) AJIL Sup. 128 (emphasis added). 129 Aaron M. Margalith, The International Mandates: A Historical, Descriptive, and Analytical Study of the Theory and Principles of the Mandates System (Baltimore: The John Hopkins Press, 1930) at 22. 130 Ibid. at 24. 131 Ibid. 132 Ibid. 133 Covenant of the League of Nations, supra note 128 at Article22. 134 Ibid.

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of the mandatory power due to their “remoteness from the centers of civilization” and the

“sparseness of their populations.”135

In this context, it is significant that the Mandate System was the League of Nations’ most

detailed and sophisticated achievement. First, it represented the essence of the original plan for

the League as a successor to the old empire, albeit with a “human face”. It would be guided by

the principle of self-determination and respect for the future self-government of the mandated

territories. In this sense, interwar technologies that aimed to deal with the “problem of

nationalities” through objective or subjective self-determination were embodied in this very

system. The nation became the overriding category of the League’s application and the starting

point for more comprehensive plans of intervention in the mandated territories and the European

territories alike. Second, the Mandate System represented the new postwar state system of

sovereignty. It laid the groundwork for the gradation of sovereignty and the creation of a new

kind of coloniality and semi-coloniality. This is clearly manifested in the classifications or grades

given to the mandated territories, reflecting their stage of economic development and level of

civilization.

2.2 The International Labour Organization

And so you get in the Treaty of Versailles, for the first time in the long history of great international treaties, the word “Labour.” You get the word “Labour” and a whole chapter devoted to what was to be done on behalf of labour, which opens with a very remarkable preamble, a preamble so remarkable that in the mass of those extremely dry and technical documents which are called treaties it appears almost as incongruously as a passage from “Alice in the Wonderland.”136

These were the words of E. J. Phelan, the British civil servant in the Ministry of Labour who

later served as the Director of the ILO (1941-1948), in an address on the necessity of an

international labour organization. His celebrated reference to labour in the Treaty of Versailles

shows that whereas the League of Nations was established on the basis of social justice, a labour

organization was deemed necessary to deal with “conditions of labour … involving such

135 Ibid. 136 E. J. Phelan, The Necessity for International Labour Organization: An Address Delivered to the League of Nations Union Summer School, Geneva (London: League of Nations Union, 1923) at 7.

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injustice, hardship and privation to large numbers of people as to produce unrest so great that the

peace and harmony of the world are imperilled…”137

The ILO had been functioning for four years by the time Phelan delivered his speech in 1923.

This alternative international organization had two main functions. The first was to secure the

standardization of labour conditions among the advanced countries in Europe.138 Its second

function was to secure progress in the backward countries, specifically through ensuring the

presence of humane conditions of labour in countries where “so to speak, no conditions existed

at all.”139

As Phelan explained, the origins of the ILO lie in the drafting of the 1919 Treaty of Versailles.

The initial motivations behind creating an international labour office were the need for a

collective effort by the victorious powers to deter the revolutionary tide coming from the East.140

In short, the “ILO was Versailles’s answer to Bolshevism.”141 As the Belgian delegate at

Versailles, Emile Vandervelde, put it: “there are two methods of making the revolution we feel is

happening throughout the world, the Russian and the British method. It is the British method

which has triumphed in the Labour Commission.”142 Through the application of the British

method to the ILO, the working classes would receive their due gratitude when the Europeans

were about to make peace. The creation of the ILO would allow the Allied Powers to involve

organized labour in the crafting of social and industrial reform within the accepted framework of

capitalism.143 Although the ILO’s interwar policies were generally informed by the spirit of

137 Ibid. at 8. 138 Ibid. at 9. 139 Ibid. at 10. 140 Robert W. Cox, “ILO: Limited Monarchy,” in Robert W. Cox and Harold K. Jacobson, eds. The Anatomy of Influence: Decision Making in International Organization (New Haven: Yale University Press, 1973) at 102, 103. 141 Ibid. 142 Antony Alcock, History of the International Labour Organization (London: Macmillan Press Ltd, 1971) at 37. 143 Robert Cox, “Labor and Hegemony” (1977) 31 Int. Org. 385 at 387.

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social democracy, they often competed with or lost out to the conservative elements in the

institution.144

At Versailles, Phelan presented a memorandum on the structure of the infant ILO. It would have

two organs: a Secretariat (Office) to collect and disseminate information and an Annual

Conference, which would negotiate international labour treaties and instruments.145 The final

Constitution of the ILO became part of all the former peace treaties.146 The exception was the

1923 Lausanne Treaty, which stipulated the terms of the peace between the Allied Powers and

Turkey and determined the Mandate framework for the former Arab provinces of the Ottoman

Empire.147

The novel idea of “tripartite representation” also came into being at the Peace Conference.148

Delegates discussed the importance of having representations from both employers’ and

workers’ organizations. Phelan proposed that in order to prevent government delegates from

being outvoted by the non-governmental delegates, each government would have two votes,

whereas the employers’ unions and workers’ unions would each have one vote.149 Each delegate

would have the right to vote individually, putting the employers’ and workers’ delegates on the

same footing as the government delegates.150 This certainly raised concerns for positivist

international lawyers such as Oppenheim, who characteristically stated that international law was

“a law between states only and exclusively.”151 According to Wilfred Jenks, a British

144 Ibid. 145 Alcock, History of the International Labour Organization, supra note 142 at 21. 146 Wilfred Jenks, “The International Labour Organization as a Subject of Study for International Lawyers” (1940) 22:1 J. Comp. Legis. & Int’l Law 36 at 36. 147 Ibid. 148 Alcock, History of the International Labour Organization, supra note 142 at 21. 149 Ibid. at 22. 150 Jenks, “The International Labour Organization as a Subject of Study for International Lawyers”, supra note 146 at 36. 151 Ibid. at 51 (citing Oppenheim).

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international lawyer and later director of the ILO (1970-1973), international labour conventions

could not be regarded as solely the creation of states.152

Tripartism, the key innovation of the ILO, has been mired in the politics of the ILO’s own

ideological commitments. There are two ways to understand this concept: first, tripartism could

be understood as the “institutionalization of conflict.”153 More specifically, it recognizes that

class struggle is an enduring feature of industrial production, but that it can be regulated by

reforms to the structures of employer-labour relations such as collective bargaining.154 Second,

tripartism could be understood in its corporatist interpretation as “non-conflictual.”155 In other

words, it envisions the smooth integration of workers and management in a harmony that the

ILO would concoct by public labour policy.156 The latter interpretation characterizes labour

issues as apolitical, technical and streamlined. It also made the ILO more broadly an institution

of technical assistance. The interwar period saw the beginnings of this strong move toward

technical assistance, but the ILO formed an “international technocratic class” only by the end of

World War II.157

Another key area in the ILO’s work was its role in colonized, mandated and non-metropolitan

territories. In the second session of the International Labour Conference (ILC), held in 1920,

delegates decided on the ILO’s constitutional treatment of the colonies.158 Initially, the British

delegation wanted colonial powers to have complete and exclusive discretion over the extent to

which ILO conventions would apply to their overseas colonies and administered territories.

However, after incessant lobbying from the workers’ group, headed by the French trade union

leader Léon Jouhaux, the ILC agreed to include colonial labour in the protections provided by

152 Ibid. 153 Cox, “Labor and Hegemony”, supra note 143 at 407. 154 Ibid. 155 Ibid. 156 Ibid. 157 Jason Guthrie, “The ILO and the International Technocratic Class, 1944-1966” in Sandrine Kott & Joelle Droux, eds. Globalizing Social Rights: The International Labour Organization and Beyond (Hampshire: Palgrave Macmillan, 2013) 115 at 115-136. 158 Daniel R. Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940-70 (International Labour Organization, 2012) at 18.

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the ILO. The final compromise took shape in what became Article 35 of the ILO Constitution, or

“the colonial clause” on the application of conventions to non-metropolitan territories:

The Members undertake that Conventions which they have ratified in accordance with the provisions of this Constitution shall be applied to the non-metropolitan territories for whose international relations they are responsible, including any trust territories for which they are the administering authority, except where the subject-matter of the Convention is within the self-governing powers of the territory or the Convention is inapplicable owing to the local conditions or subject to such modifications as may be necessary to adapt the Convention to local conditions. …159

Therefore, the colonial countries had the authority to exempt their non-self-governing territories

from ILO standards when the “local conditions” made the Convention inapplicable and the

power to amend or modify these standards as necessary to adapt the relevant ILO convention to

the local context. Effectively, the colonial powers had the freedom to exempt their mandated

territories and colonies, while maintaining an overall record with the ILO in relation to these

same territories.160 Practically, this meant that ILO conventions were almost never implemented

in non-self-governing territories.161 The metropoles were not going to allocate more than the bare

minimum funds for social policy in these territories. At the same time, London, Paris, Brussels

and The Hague had all provided extensive resources and funds to major infrastructural projects,

such as rail networks and ports and provided favourable conditions specifically for private

capital to invest in non-self-governing territories during the interwar period.162

Significantly, labour policy in the colonies, even in territories controlled by the British under so-

called “indirect rule,” always involved a demarcation between European and “traditional” labour

because the demands of European workers were satisfied by coercive measures deployed against

colonial workers. In fact, the mandate treaties for B and C Mandates permitted the use of forced

labour. Specifically, the treaties prohibited forced labour “except for essential public works and

159 Constitution of the International Labour Organization, signed at Versailles, 28 June 1919 (entered into force 4 June 1934) at 24 (emphasis added), available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO 160 Maul, Human Rights, Development and Decolonization, supra note 158 at 19. 161 Ibid. 162 Ibid. at 21.

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services and then only for adequate remuneration.”163 There was, however, a general obligation

in article 23 (a) of the Covenant of the League of Nations that members of the League would

secure “fair and humane conditions” for workers in their own countries and in countries “to

which their commercial and industrial relations extend, and for that purpose will establish and

maintain the necessary international organisations.”164 However, this was a generic principle that

was easily manipulated through all the caveats within the Mandate treaties.

The celebrated 1944 Philadelphia Declaration, which famously stipulated that “labour is not a

commodity,” also qualified the principles set forth in the ILO constitution as “fully applicable to

all peoples everywhere and that, while the manner of their application must be determined with

due regard to the stage of social and economic development reached by each people, their

progressive application to peoples who are still dependent, as well as to those who have already

achieved self-government, is a matter of concern to the whole civilised world.”165 Thus, the ILO

also embraced the system of the gradated sovereignty and standards of civilization in the

League’s Mandate System until as late as 1944.166

Throughout the interwar period, however, the ILO attempted to deal with the main colonial

powers by alleviating the frictions and sensitivities pertaining to non-self-governing territories.

This desideratum was at the root of the “Native Labour” section in the International Labour

Office in 1920. This was a very small section comprised of 1-3 employees throughout the entire

interwar period.167 It was responsible for collecting and evaluating information from the

colonies. This initiative is collectively remembered in ILO histories as a method used by the ILO

to mitigate the stubbornness of colonial powers. However, through this office, which effectively

espoused the principle of “separate but equal”, the ILO formulated a succinct colonial labour

policy throughout the interwar period, collaborating with the colonial and security apparatuses in

163 The League of Nations, “The Mandates System: Origin, Principles, Application” (April 1945) Series of League of Nations Publications, Geneva, available at: http://unispal.un.org/UNISPAL.NSF/0/C61B138F4DBB08A0052565D00058EE1B 164 Covenant of the League of Nations, supra note 128 at 10. 165 Constitution of the International Labour Organization, supra note 159. 166 On gradations of sovereignty, see Krasner, Organized Hypocrisy, supra note 86. 167 Maul, Human Rights, Development and Decolonization, supra note 158 at 20.

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non-self-governing territories, as well as with industrialists’ associations, as demonstrated by the

ILO’s mission to Egypt in 1936. The “Native Labour” section was later complemented by the

creation of a Native Labour Code (NLC), which was drafted in addition to the International

Labour Code that comprised of all the ILO’s conventions.168 The NLC was to be applied

selectively by the European powers by virtue of the “colonial clause” in the ILO Constitution.169

Three main themes characterize the birth of the ILO. First, the ILO represents the first time that

“class” and class subjectivity entered into thinking about international law and its institutions.

Through the ILO, the working class, at least theoretically, became a direct agent in the workings

of international labour policy. The tripartite system of representation most vividly manifested the

application of this new dynamic within a largely state-centric international law.

Second, despite inserting “class” into international law, the ILO could not escape the colonial

and capitalist context within which it operated. The clear gradation of treatment and standard-

setting system of the ILO informed its apolitical and technical approaches to working class

politics, as well as the networks of relationships with which it engaged in non-self-governing

territories, connecting it with the ruling class, the colonial administrators and officers and the

domestic industrialist class.

Third, because of its dynamism, the ILO had the potential to become an agent of change in

international law. If workers’ delegates could be present at the ILO Conferences, then surely a

“workers’ perspective” was bound to be part of the process. Nevertheless, the realities of the

ILO’s involvement with agents of empire and capital in the colonized world raise various

questions about the extent of the institution’s genuine revolutionary commitments and desire for

social justice.

168 Ibid. at 23. 169 Ibid.

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Conclusion 3 “What is it you want to know now?” asks the doorkeeper, “You’re insatiable.” “Everyone wants access to the law,” says the man, “how come, over all these years, no one but me has asked to be let in?” The doorkeeper can see the man’s come to his end, his hearing has faded, and so, so that he can be heard, he shouts to him: “Nobody else could have got in this way, as this entrance was meant only for you. Now I’ll go and close it.”

Franz Kafka, The Trial (1915)170

This chapter has situated the main theoretical interventions of this dissertation within critical

international legal history. While building on a number of its contributions, my case studies of

the League of Nations and the ILO interventions in the interwar Arab semi-periphery also

demonstrate the failure of this scholarship to date to develop an account of the interwar period

that goes beyond a nationalist lens to interrogate other variables that contribute to identity

formation, class and capital in particular. Because the League of Nations privileged “nation” and

the ILO “class,” placing interventions by these two interwar international institutions in the

Middle East side by side enables an investigation of the roles played by class and capital in each

dispute.

170 Kafka, The Trial, supra note 1 at 256.

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Chapter 2 Projects of Nation-Building in the Sanjak of Alexandretta: The League of Nations’ National Confessional Program and the

Search for “Authentic” Ethnicity

From Prison des Sables, Sami Slim, a Syrian anti-colonial activist, sent a petition to the League

of Nations. In it, Slim claimed that he was arrested on allegations of insulting a police officer and

inciting people to close their shops as part of a day of action against the French presence in

Syria.1 Slim claimed that he was violently arrested and wrongfully sentenced by French judges.

Using the League of Nations’ system of petitions, he explained the “real tyranny” of the French

administration in Syria and Lebanon.2 Deploying the legal language of the League and its

petition system, he protested the violations of his right to freedom of speech and freedom of

assembly and his cruel treatment by the French police.3 The Mandatory Power admitted that M.

Slim “was handled a little roughly” during the riots, which it claimed he usually incited and

“therefore suffered the consequences of his own attitude.”4 The League’s Rapporteur accepted

the explanation of the Mandatory Power that M. Slim’s “rough handling” was merely a

consequence of his own wrongful behaviour.5

Beyond protesting his mistreatment, Slim’s petition rejected the French mandate in Syria

altogether, especially as compared to other interwar legal technologies adopted in Europe, such

as the international administration of the Saar territory.6 International administration, the

petitioner argued, might have at least mitigated some of the injustices and violations committed

by the Mandate power.7 Other petitions similarly held the League accountable for “giving Syria”

1 Petitions from M. Sami Slim dated April 1,1936; October 1, 1936; July 26 1937, transmitted on October 30, 1937 by the French Government with its observations (Report by Mile. Dannevig) Permanent Mandates Commission, November 15, 1937, League of Nations Archives at 1, 2. 2 Ibid. 3 Ibid. 4 Ibid. 5 Ibid. 6 Letter from Sami Slim to the Mandates Commission, Beirut, December 7, 1934, League of Nations Archives. 7 Another angry petition demanded the League’s direct intervention in the scandal of the French railway company, where the French administration took one million Syrian pounds from the Syrian treasury to deliver it to the French

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to France and for the violence of the French mandate, specifically in targeting not only anti-

colonial activists, but also striking workers and organized boycotts of French companies.8

In numerous petitions found in the League’s archive, Syrian petitioners demanded that Syria be

administered “like Europe”. Most significantly, these petitions raised, perhaps unintentionally,

the intersection of class struggle with ethnicity in the Syrian context. They referred to “inciting to

close shops”, “strikes against the French railway company” and “anti-colonial demonstrations” –

all connected to the colonial presence and the politics of foreign capital in Syria.9 When a dispute

arose between the French Mandate of Syria and Lebanon and the Republic of Turkey over the

future of the Sanjak of Alexandretta (hereinafter the “Sanjak”, “the province” and

“Alexandretta”), however, the substance of the petitions and the petition procedure itself were

marginal. If not irrelevant to the League’s policy in the Sanjak, the ethno-class outlook the

petitioners expressed was ultimately papered over by the nation-building project.

In this chapter, I focus on the League of Nations’ intervention in the Alexandretta dispute from

1936 (a decade after the conflict over Mosul was settled) until the final settlement and Turkish

annexation in 1939.10 The dispute started when France announced in September 1936 at the

Council of the League of Nations that it would abrogate its mandatory regime in Syria, including

Alexandretta. In December 1936, the Turkish Government officially informed the Secretary

General of the League that a dispute had arisen between France and Turkey over the future and

self-determination of the province of Alexandretta.11

railway company. This resulted in a workers’ strike and the subsequent arrest of all members of the strike committee. As ordered by the High Commissariat, the strikers were tried in French courts, and not ordinary domestic courts. The petitioner demanded that the League contest the monopolies created by French companies, which severely impacted the socio-economic conditions of local citizens. Petition to the Secretary General of the League of Nations from Beirut, March 31, 1934, League of Nations Archives. 8 Boycotts against French monopolies, especially essential service companies such as the French Electric Company were, particularly suppressed by the French administration in Syria and Lebanon. 9 Petition to the Secretary General of the League of Nations from Beirut, supra note 7. 10 Sanjak was also called Liwa in Arabic. The Sanjak of Alexandretta was referred to as Liwa Al-Iskenderun. A Sanjak was usually a provincial district in a Vilayet/Wilayet or a province in the late Ottoman Empire. 11 Yücel Güçlü, The Question of the Sanjak of Alexandretta: A Study in Turkish-French-Syrian Relation (Ankara: Turkish Historical Society Printing House, 2001) at 98.

53

Eventually the dispute ended with the now well-known secret deal between France and Turkey

that secured a Turkish majority vote in the Sanjak’s Assembly in the shadow of the League’s

sessions in Geneva. This outcome was by no means inevitable. The real lessons for international

law reside in the prehistory of this final settlement, particularly the active role played by the

League of Nations in the region’s competing nation-building projects. Through the League’s

interventions, international law provided a political vocabulary in which identitarian categories

of national self-determination were articulated in new and different ways. My argument, then, is

that international law and the League’s legal technologies incited the very modalities of identity-

formation. Alexandretta became one of the League’s model nation-building projects of the inter-

war years in the “semi-peripheral” Arab territories. While this dispute had many dimensions, the

League’s legal structures relied on crafting new and singular ethno-national legal identities that

essentially reshaped the politics of the Sanjak. Significantly, the success of these legal structures

hinged upon the alliances between the League, the French mandate and local elites that formed at

the expense of other subaltern or class-based visions for the future of the province.

Only a few historians of the modern Middle East, most notably Sarah Shields in Fezzes in the

River, have focused on the Alexandretta episode.12 While I share many of Shields’s ideas, I differ

in focusing on identity politics and nation-building as expressly legal projects. I also differ from

Shields’s view that the divisive role played by the League was essentially inconsistent with its

original intentions or in other instances simply reflected colonial politics. Rather, I argue that

such practices arose organically as combination of the politics of the international institution

with the indeterminacy of international law. The project was comprehensive, targeted and

transformative, despite the fact that the final settlement came by a backroom deal, in express

violation of France’s international legal obligations. Accounts of the conflict, including

Shields’s, have grouped the Alexandretta settlement with the system of minority treaties used in

inter-war Central and Eastern Europe. In contrast, I locate the conflict in the geopolitics of a

semi-peripheral colony that exists in between the minority treaties paradigm, typical in Europe

12 For instance, the leading Middle East historian of his time, Albert Hourani, dedicated only a few pages to the Alexandretta dispute in his book on Syria and Lebanon. See his Syria and Lebanon: A Political Essay (Oxford: Oxford University Press, 1946) at 206-213.

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and the self-determination paradigm underlying Class A Mandates.13 The conflict, therefore,

travels along both terrains: the former normally associated with settlements in Europe and the

latter associated with those in the periphery.

Historically, the Alexandrettans enjoyed some level of communal harmony between the different

ethnicities and religions in the Sanjak. However, visible class distinctions along ethnic lines

emerged before the League intervened. In fact, these ethno-class distinctions came to define the

nature of economic and social life in the Sanjak before French Mandate policies transformed

communal differences into differences among colonial minorities. They also created a specific

class structure that was not only tied to waged-labour (feudal, or industrial), but also to ethno-

national identities, as capital slowly flowed into the region and to the port of Alexandretta, more

specifically. In that sense, the categories of “class” and “ethnicity” intersected and overlapped,

mutating and forming new identities.

Notwithstanding this “ethno-class” structure of the Sanjak’s social and economic relationships,

the League devised a set of legal mechanisms (the Fundamental Law, the plebiscite and the

Special Tribunal) that effectively created new categories and forms of allegiances that came to

define the politics of Alexandretta and Syria more broadly. Identities in the Sanjak were

represented by new classifications of “race”, “ethnicity” and “minorities” (that differed from the

Ottoman classifications). As in the Mosul case discussed later, the League of Nations settlement

process set out to translate the complex identities into fixed ethno-national categories as a

prerequisite for Alexandretta’s exercise of self-determination. “Class” or “ethno-class” did not

figure as an analytical category and thus neither as a potential subject of concern in international

law.14 I argue here that nevertheless the League’s ethno-national categories overlapped with

class-based distinctions, even though the League did not attend to these distinctions as

constitutive of identity-formation in the Sanjak. Again, this was consistent with the nature of the

League’s intervention as a nation-building project that would lay the foundation for the new

post-colonial and nationalistic nation-state in the region.

13 For an insightful comparison between Eastern Europe and Middle East, see Susan Petersen, “The Meaning of the Mandate System: an Argument” (2006) 32 Geschichte und Gesellschaft 560. On nation-building in Eastern Europe, see also Rogers Brubaker, Nationalism Reframed: Nationhood and the National Question in the New Europe (New York: Cambridge University Press, 1996). 14 By this somewhat awkward composite classification “ethno-class”, I mean to convey that ethnic identities also reflected class distinctions and vice versa.

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The Prelude: Managing “Ethnic” Difference in the Late 1Ottoman Empire

Alexandretta, like other provinces of the Ottoman Empire in the nineteenth century, was deeply

affected by the dual processes of integration into the capitalist system and state centralization.

While the former gave non-Muslims privileged access to wealth accumulation that often bred

Muslim resentment, the latter was in part designed to level the playing field.15 At the imperial

level, new state schools and new laws administering the provinces sought to engineer an

overarching Ottoman identity. At the local, and especially the urban levels, non-Muslim

communities were incorporated into the Ottoman state as autonomous but accountable

“millets.”16 From the state’s perspective the millet system replaced the protective but

discriminatory dhimmi status of Christian and Jewish subjects of the empire and the abuses of the

European Capitulations, which allowed more and more non-Muslim merchants to escape

Ottoman jurisdiction. From the non-Muslim communities’ perspective it offered new

commercial elites and dragomans a political space that challenged the traditional clerical

establishment. 17

Thus, the emergence of the “millet” as a legal category and a source of power and legitimacy

coincided with the rise of the middle class in the Ottoman provinces, as new socioeconomic

forces developed with the incorporation of the Ottoman Empire into the world economy. The

shift from the religiously-bounded millet organization into a “barricaded” system of ethnic

representation reflected a transformation in the class structure.18 At the same time the Ottoman

property law of 1858, transferred 50 to 70 percent of the state’s arable land to individuals as

private property. This process encouraged the commercialization of agriculture and supported the

15 Karen Barkey, Empire of Difference: The Ottomans in Comparative Perspective (Cambridge: Cambridge University Press, 2008) at 264-96. 16 There were initially three non-Muslim millets: the Orthodox millet included Western Christians, mostly the Slavs in the Balkans; the Armenian millet represented Eastern Christians; and the third millet represented the Jews. In the mid-nineteenth century, the British successfully pressed the Ottoman government to recognize its Protestant subjects in a separate millet. See generally, Benjamin Braude & Bernard Lewis, eds. Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society (New York: Holmes & Meier, 1982). 17 Kemal Karpat, The Politicization of Islam: Reconstructing Identity, State, Faith, and Community in the Late Ottoman State (New York: Oxford University Press, 2001) at 126. 18 Barkey, Empire of Difference, supra note 15 at 277.

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rise of a new social class of Muslim absentee landowners.19 An alliance was formed between the

government and the new urban-based middle class committed to an Ottoman “civilization”

discourse and to the protection of millets.20 The idea of “civilization” (later adopted in Article 22

of the Covenant of the League) became increasingly part of elite culture in the Ottoman Empire.

It embodied Enlightenment ideas of reform and progress. Under Sultan Abdülhamid II (r. 1876-

1908), Islam was mobilized as a modernizing vehicle.21 The class politics of the millet system

was, however, still largely reflected in religious and commercial stratifications, despite having

some ethnic connotations, especially toward the late nineteenth century and the beginning of the

twentieth century.

Although the Ottoman millet system stemmed initially from basic Islamic principles granting

certain protections to the “peoples of the Book”, it took different meanings in different parts of

the empire at different times.22 In the Balkans, the Greek Orthodox millet assumed a proto-

national form. In the Ottoman Levant where, as Jens Hanssen has argued, a federal form of

autonomy remained the dominant political paradigm, the millet system served to regulate

religious communities’ interactions in the wake of mid-century sectarian strife.23 In many ways,

the Armenian genocide in Eastern Anatolia during World War I broke this delicate balance

between state centralization and communal autonomy. Nevertheless, by the time the League

intervened in the post-Ottoman Levant, its inhabitants did not readily fit into the hard ethno-

national categories that the League’s legal-civilizational discourse presumed and manufactured.

As I will show, the League’s over-determination of ethno-national divisions in the province

neglected the real implications of class politics and status structure that crossed late Ottoman

society and beyond.

19 Karpat, The Politicization of Islam, supra note 17 at 409. 20 Ibid. 21 Ibid. at 410. See also Ussama Makdisi, “Ottoman Orientalism” (2002) 107:3 Am. Hist. Rev. 768 at 770. 22 Karpat, The Politicization of Islam, supra note 17 at 280. 23 See generally Jens Hanssen, Fin de Siécle Beirut: the Making of an Ottoman Provincial Capital (Oxford: Oxford University Press, 2005) at 55.

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Self-Determination for the “Semi-Periphery” as 2Nation-Building

A large number of otherwise divergent narratives on the Alexandretta dispute concur that an

ethnic or a national conflict was almost inevitable given the diversity of the Sanjak.24 However,

before the Alexandretta file was opened at the League of Nations, this inevitability seemed less

imminent. Administratively, the Sanjak was created in November 1919 with the arrival of the

French military and the partition of the province of Aleppo.25 Syria officially became a French

Mandate a few months later and the entire region of Syria and the Lebanon became governed by

the Mandate treaty and Article 22 of the Covenant of the League of Nations, which read:

Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory….26

Territories of the former Ottoman Empire thus fell under French jurisdiction but were not subject

to French sovereignty.27 France’s role was limited to providing these territories with political

organization and “to fix[ing] their frontiers.”28 This jurisdiction/sovereignty distinction, although

tenuous, was reminiscent of the Ottoman Capitulations, insofar as extraterritorial jurisdiction of

European states under that legal regime likewise did not translate into sovereignty.29 The same

logic applied to the political organization on matters pertaining to the boundary demarcation of

what would become an independent sovereign state.

After the Great War, and before the final settlement between Turkey and the European Allies,

France proposed to Turkey that it would grant special privileges to Turkish constituencies in

24 Question of Alexandretta and Antioch (Sept. 1937) Extract from the Report on the Work of the League, 1936/37. Part I, Geneva, League of Nations Archives. 25 Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 3, 9. 26 Covenant of the League of Nations, 28 April 1919, 13 (1919) AJIL Sup. 128. 27 On this distinction, see Mary Dewhurst Lewis, Divided Rule: Sovereignty and Empire in French Tunisia, 1881-1938 (Berkeley: University of California Press, 2014). 28 Question of Alexandretta and Antioch, supra note 24 at 3. 29 Lewis, Divided Rule, supra note 27 at 28-60.

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Alexandretta, which would have a special regime autonomous from the rest of Syria. This

proposal was part of the 1921 Franklin-Bouillon Agreement signed in Ankara (or the Franco-

Turkish Treaty or the Ankara Agreement) and later included in the 1923 Treaty of Lausanne.30

Article 7 of the Ankara Agreement set up the kind of regime that was to govern Alexandretta. It

stipulated that

A special administrative regime shall be established for the district of Alexandretta. The Turkish inhabitants of this district shall enjoy facility for their cultural development. The Turkish language shall have official recognition.31

According to Article 8 of the Ankara Agreement, the frontiers between Turkey and Syria were to

be a line starting on the Gulf of Alexandretta immediately to the south of Payas, (Maidan-Ekbes

was given to Syria), then running east and south, (Killis was given to Turkey). The frontier

further followed the tracks of the Baghdad Railway until it joined the Tigris at Jezirat Ibn-Umar.

The legal status of the frontier was confirmed later in Article 3 of the 1923 Treaty of Lausanne

between Turkey and the French Mandate of Syria.32

Later in 1923, and before the adoption of the Treaty of Lausanne, the French High

Commissioner declared the Sanjak to be officially attached to the state of Aleppo. At that time,

Turkey had more political leverage. It had successfully defeated the Kurdish revolt. Syria, on the

other hand, was being confronted by the Druze and Syrian nationalists’ revolts.33 In the

following years, the French mandatory power continued to give the Sanjak a special status. Thus,

in May 1930, the French High Commissioner issued a decree that promulgated the “organic

regulation” of the Sanjak, which gave the province a special administrative and financial regime

within Syria.34 However, the question of national identity started to take different forms and

levels of intensity as the conflict between France and Turkey culminated in 1936. Aleppo’s and

Syria’s main Mediterranean port of Alexandretta was strategically situated for the development

of trade and commerce. Alexandretta was a terminal on the Berlin-Baghdad Railway, which was

30 Question of Alexandretta and Antioch, supra note 24 at 1. 31 Franco-Turkish Agreement Signed at Angora, 20 October 1921, Agreement Between M. Franklin-Bouillon, Former Minister, and Yussuf Kemal Bey, Minister for Foreign Affairs of the Government of the Grand National Assembly of Angora. 32 Majid Khadduri, “The Alexandretta Dispute” (1945) 39:3 AJIL 406 at 407. 33 Ibid. at 408. 34 Question of Alexandretta and Antioch, supra note 24 at 1.

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extended to Haifa and Tehran and slated to become the fastest and most cost-effective route to

the Mediterranean and hence access to Western markets.35 During the Great War, the port of

Alexandretta was booming with traffic – from troop trains to war materiel.36

During the 1920s and the first half of the 1930s, the Sanjak of Alexandretta witnessed inter-

communal harmony, with more than 200,000 people representing numerous linguistic and

religious communities (Sunni Muslims (Arabs and Turks), Alawites, Syriac Orthodox, Greek

Catholics, Maronites, Jews, Assyrians, Kurds, Armenians and Greeks) participating in a

relatively successful social experiment.37 The ethnic division of labour in the Sanjak clearly

corresponded to certain class distinctions.38 For example, Sunni Turks were primarily the

landowners and the main industrialists in the Sanjak; Armenians and arabophone Christians

formed the backbone of the commercial class; Alawites and Sunni Arabs were mostly

agricultural and domestic labourers and therefore constituted the lowest paid professions.39

Existing “ethno-class” divisions were re-characterized by the League as almost exclusively

ethnic in nature. This also explains why questions that pertained to labour, or the working class,

more broadly, were discussed only in passing at the League’s sessions. When the Council of the

League examined the 1938 annual report for Syria and Lebanon, there was only a very brief

reference to labour and social legislation. The report noted that the only social legislation

promulgated concerned the employment of women and children. M. Robert De Caix,

representative of the Commission of the French mandate of Syria and Lebanon and one of the

main framers of French policy in Syria, explained, however, that “the large corporations

operating in Syria and Lebanon … were drawing up internal regulations on the subject of

industrial accidents and conditions of employment [and] introducing a very advanced system.”40

35 Great Britain and the East, January 14, 1937, League of Nations Archives. 36 Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 3, 9. See also Albert Hourani, The Emergence of the Modern Middle East (Berkeley: University of California Press, 1981) at 207. 37 Robert B. Satloff, “Prelude to Conflict: Communal Interdependence in the Sanjak of Alexandretta 1920-1936” (1986) 22:2 Middle East. Stud. 147 at 147. 38 Ibid. at 161; Philip S. Khoury, Syria and the French Mandate: The Politics of Arab Nationalism, 1920-1945 (Princeton: Princeton University Press, 1989) at 495. 39 Satloff, “Prelude to Conflict”, supra note 37 at 159. 40 Syria and Lebanon: Examination of the Annual Report for 1938 (1938) University of Toronto Robarts Library Microfilm at 241.

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This, he argued, was unfortunate for workers who were not employed by these large, mostly

French, corporations.41 According to M. De Caix, working class demands (and hence agitation)

would slowly wither away with the increased presence of large corporations in the territories.

These French corporations would adopt equitable social and labour regulations for their (mostly

Syrian) workers.

With the exception of these few references, labour and “class” issues were absent from most

sessions at the Council of the League, not only with regard to the Alexandretta affair, but also

more generally in relation to the French Mandate’s management of Syria and Lebanon.

Prior to the institution of the “Class A” mandate in 1924, Syria was already categorized as more

advanced than other colonized territories although not yet on par with European countries. Most

notably, Howard Bliss, president of the Syrian Protestant College, urged US President Woodrow

Wilson to send a commission of inquiry in 1919 to the Arab provinces of the Ottoman Empire to

determine the wishes of the population and accordingly realize their self-determination.42 The

inquiry was headed by Charles Crane, a Chicago industrialist and a contributor to Wilson’s

presidential campaign and Henry King, president of Oberlin College;43 and commonly known as

the King-Crane Commission. Their report found that the Arabs in Syria, for example, were seen

as “more capable, better educated, than the Philippines, to whom the United States were about to

give entire self-government.”44 The Commission saw that there would be less harm done if

Arabs were given their independence even if they failed in their task of self-government.45

During the Commission’s visit, a leaflet was widely circulated in Syria titled “Independence or

Death!”:

All oppressed nations today demand their independence and freedom and sacrifice their blood and money for this purpose. Does it not behove us that we, the Syrian Arab community, unite as a single bloc to demand complete independence, free from any blemish of protection or tutelage? … Is it reasonable and proper that we place our country under the

41 Ibid. 42 Ussama Makdisi, “Anti-Americanism in the Arab World: An Interpretation of a Brief History” (2002) 89:2 J. Am. Hist. 538 at 545. 43 Ibid. 44 Record of an interview with Mr. Charles Crane, Former American Minister in China and Former Minister of the American Section of the Inter-allied Commission on Mandates in Turkey (undated), League of Nations Archives. 45 Ibid.

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yoke of protection or mandate to one of them? No—certainly not… All parts of Syria—its south, its north, its west, affix their hopes in you, as does Palestine (southern Syria), the first to be consulted by the commission, which demanded complete independence with no division of Syria and refused all protection, tutelage, or mandate…. Thus, we demand:

1. Complete independence for the country of Syria and for other liberated Arab lands, such as Iraq.

2. Refusal of all protection, tutelage, mandate, or their like. We protest strongly Article 22 of the Charter of the League of Nations. …46

The leaflet narrated a common sentiment among Syrians as the spectre of tutelage was

approaching with the creation of the League of Nations and the mandate system. Anti-colonial

nationalists were against any mandatory protection even if it was managed by the League of

Nations. In fact, they stated that the mandate system and the League’s celebrated Article 22

would “enslave” the Syrians.47 Greeted by anti-colonial resistance and refusal of tutelage, the

King-Crane Commission found that Syria should be given independence, specifically that it was

more “civilized” than countries that had already gained their independence. In other accounts in

the League of Nations’ archives, Syrians were depicted as almost semi-civilized subject peoples

(albeit not in those terms) – as “fanatical…[but] clever and educated” and able to exert influence

in less civilized areas, such as Saudi Arabia.48

The logic of Syria’s “semi-civilized” status under the French Mandate meant that the League of

Nations in managing the dispute had to take into consideration the demands of the

Alexandrettans on the future of the Sanjak. The people would determine the future of the Sanjak

through a set of mechanisms instituted and managed by the League of Nations. The League

assigned technicians (of the semi-periphery) who became experts in those regions, to study the

ethnic composition of the population and their preferred final status. One member of the three-

person Observer Commission to Alexandretta was the former President of the Commission for

the Greek-Turkish population exchange, M. Hans Holstad, another vehicle designed by the

League to manage this region.49 Whether or not intentionally, the League was effectively

creating a cadre of experts on the semi-periphery who would have a legitimate say on the correct

46 James Gelvin, Divided Loyalties: Nationalism and Mass Politics in Syria at the Close of the Empire (Berkley: University of California Press, 1998) at 151, citing the leaflet “Independence or Death” (emphasis added). 47 Ibid. 48 Martin MacLaughlin, “Turkey’s Fears on Syrian Border: French Treaty Which Might Release Old Forces of Feud and Schism” (1938) League of Nations Archives. 49 Question of Alexandretta and Antioch, supra note 24.

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paths to be taken in those territories based on their experience in other Class A mandate

territories or within the broader semi-periphery. More importantly, this legal-geographical status

meant that Alexandretta would lie in this ambiguous zone between the self-determination

paradigm of the mandated South and the minorities’ treaties paradigm of the more advanced

Europe.

Forging New National Identities: the Alexandretta File 3at the League of Nations

While social tensions already existed, the League’s intervention treated those tensions as ethnic

or nation-based conflicts to a greater degree. In fact, it was only when the League of Nations put

Syria on its radar, and the French authorities started to consider seriously the conditions for

Syrian independence, that all these communities came to be referred to as “minorities”, the

mantra of interventionism in interwar Europe as well as in post-Ottoman Levant.50 Typically,

international lawyers saw the minorities paradigm as (geographically) separate from the self-

determination paradigm employed in the Mandates.51 Because Mandates were intended for

territories “not yet” civilized, the system promised imminent fulfilment and indefinite deferral of

self-determination. As discussed in Chapter 1, critical international legal histories of the interwar

period tend to collapse the colonized world into one paradigm. Implicit in some Newstream

accounts is that interwar technologies of international law such as plebiscites and minority

protection were only European affairs.52

In Syria, it was precisely the legal protections accorded to “minorities” that became the pretext

for extending the Mandate. Legal definitions of a “minority” within the Syrian national

boundaries meant that it would also define the “majority” in a way that surpassed a mere legal

50 Benjamin White, The Emergence of Minorities in the Middle East: The Politics of Community in French Mandate Syria (Edinburgh: Edinburgh University Press, 2011) at 131. 51 See for example, Malcolm Shaw, “Peoples, Territorialism and Boundaries” (1997) 8:3 Eur. J. Int’l L. 478 at 485; James Crawford, “The Right of Self-Determination in International Law: Its Development and Future” in Philip Alston ed., Peoples’ Rights (Oxford: Oxford University Press, 2001) 5; Nathaniel Berman, “Nationalism Legal and Linguistic: The Teachings of European Jurisprudence” (1991-1992) 24:4 N.Y.U. Int’l L. & Pol. 1515 at 1524. 52 Nathaniel Berman, “‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal of International Law” (1993) 106:8 Harv. L. Rev. 1792 at 1796.

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status.53 More generally, the League had to deal with increasingly anticolonial insurrections in

Iraq in 1920, in Syria from 1925 to 1927 and in Palestine throughout the 1930s.54 In this context

“the protection of national minorities” functioned as a means for the League and the Mandatory

Powers to contain nationalisms. Alexandretta, too, was swept up in nationalist politics.55 For the

League, it was apparent that not every group claiming national self-determination for a given

territory could be granted an independent nation-state.56

Alexandretta was eventually incorporated into Turkey through Turkish annexation. Nevertheless,

as historian Benjamin White argues, it “would take an anachronistic, nationalist view of the state

to argue … [that] Alexandretta [was] a part of ‘Turkey’, prior to this period.”57 This outcome

was only politically imaginable because of contentious campaigns of nation-building that served

as the foundation for the self-determination/Mandate paradigm, as well as the “protected

minorities” paradigm. Even the backroom deal between Turkey and France is collectively

remembered in Turkey and by League enthusiasts, as both a success of the good offices of the

League of Nations and a realization of the democratic will of Alexandrettans through the legal

mechanisms of the League.58 In a sense, the settlement was a fictitious realization of the

romantic Rousseauian self-determination paradigm, where popular will and majoritarian

nationhood are the primary determinants.59

As the League was engrossed in nation-building and instituting its legal technologies in the

Sanjak, the year 1936 started with massive agitation in Franco-Syrian relations, with Syrian anti-

53 White, The Emergence of Minorities in the Middle East, supra note 50 at 154. 54 Abbas Kadhim, Reclaiming Iraq: The 1920 Revolution and the Founding of the Modern State (Austin: University of Texas Press, 2012); Michael Provence, The Great Syrian Revolt (Syracuse: Syracuse State University Press, 2007); Charles Anderson, From Petition to Confrontation: The Palestinian National Movement and the Rise of Mass Politics, 1929-1939 (New York: NYU dissertation, 2014). 55 Ibid. 56 Sarah Shields, Fezzes in the River: Identity Politics and European Diplomacy in the Middle East on the Eve of World War I (Oxford: Oxford University Press, 2011) at 5. 57 White, The Emergence of Minorities in the Middle East, supra note 50 at 131. 58 Shields, Fezzes in the River, supra note 56 at 12. 59 The other conception is the classical Hobbesian conception, where the language of self-determination secures the internal state functioning, preserves its identity as a self-determining entity, and protects its territorial integrity. See Martti Koskenniemi, “National Self-determination Today?: Problems of Legal Theory and Practice” (1994) 43:2 ICLQ 241; Martti Koskenniemi, “The Politics of International Law” (1990) 1 Eur. J. Int’l L. 4 at 30; See also Chapter 1, above.

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colonial resistance reaching an intensity not witnessed since the Great Syrian Revolt of 1925-27.

The January general strike – organized by workers, shopkeepers, students and government

functionaries – affected the entire country. The strike was soon supported by the nationalist elites

in Damascus, which called for a general strike until the High Commissioner restored

constitutional life in Syria.60 The National Bloc’s manifesto openly declared its anti-mandatory

stance: “For more than twenty days, the Syrian people, without arms, have [sic] not stopped

protesting, by striking and peaceful demonstrations, for the achievement of its aspirations. The

Authorities have replied by gunfire and the spilling of blood … the Syrian nation declares once

again to the world the failure of the Mandate regime….”61 While the elite nationalists had the ear

of the French authorities, anti-colonial resistance was concentrated in the working classes who

often used the withdrawal of their labour as a weapon of dissent. The French authorities referred

to such anti-colonial acts of protest as “extremist nationalism,” which they opposed to the

“moderate nationalism” of those elites who acquiesced to the terms of the 1936 Franco-Syrian

Treaty and collaborated in preventing labour action in Damascus and elsewhere.62 The

“extremist” nationalists, on the other hand, adopted what was considered to be a dangerous kind

of nationalism: pan-Arab solidarity. One manifestation of this pan-Arabism was directed against

Zionism. Syrian nationalists started sending arms to the Arabs in Palestine.63 In response, the

Mandate often needed to intervene to prevent the dispatch of arms. Such acts of clandestine

border-crossing posed a severe threat to the Mandate system. As M. De Caix reported to his

60 Despite its manifestly anti-colonial rhetoric, some of the main leaders of the National Bloc were part of the nationalist elite, which was hardly in favour of emancipation “from below”. A prominent example is Fa’iz al-Khuri, a lawyer and later a law professor, who had studied at the School of Law and Imperial War College in Istanbul. He published a two-page disquisition on socialism in al-‘Asima, challenging what he called the social levelling advocated by a foreign and European ideology—socialism. He asked, “Can those who are informed and those who aren’t be equal? ... Men earn their rights by performing duties that advance the fatherland,” he asserted; as a result, “it is not equality when the educated man [‘alim] who works for the benefit of his country is equal to the savage ignoramus under law… [citing] with implied approbation electoral systems that grant the educated (muta’allimin) a greater voice than the ignorant.” Peter A. Shambrook, French Imperialism in Syria: 1927-1936 (Reading: Ithaca Press, 1998) at 193-195. See Gelvin, Divided Loyalties, supra note 46 at 205. Fa’iz al-Khuri was also one of the main architects of the 1930 Syrian constitution. See Majid Khadouri, “Constitutional Development in Syria: With Emphasis on the Constitution of 1950” (1951) 5:2 Middle East J. 137 at 141. See also Khoury, Syria Under the French Mandate, supra note 38. 61 Shambrook, French Imperialism in Syria, supra note 60 at 193-195. 62 Syria and Lebanon: Examination of the Annual Report for 1936: Franco-Syrian and Franco-Lebanese Agreements of 1936 (1936) University of Toronto Robarts Library Microfilm at 25. 63 Ibid.

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superiors in Paris, part of problem was that Syrian and Arab nationalists rejected the re-drawing

of national boundaries separating Southern Syria (Palestine) from its North (Syria).64 Similar

disruptions occurred in Lebanon, albeit not in direct opposition to the Mandate. Rather, de Caix

worried about the strong pro-Syrian opposition to the existence of Lebanon as an independent

state. If the French government’s policy in Lebanon was “to strengthen the independent

existence of the Lebanese State,” then it was secured through another nation-building project in

Syria.65

It was in this context that the League of Nations intervened in the Alexandretta dispute. When

France and Syria finally signed the Franco-Syrian Treaty in September 9, 1936, Turkey was only

a shadow in the travaux preparatoires. However, in the meeting of the Council of the League of

Nations of September 1936, France officially announced its intention to abrogate the mandatory

regime in Syria, as well as its plan regarding the Turkish inhabitants of Alexandretta. Before the

Franco-Syrian treaty was ratified, Turkey officially re-opened the Alexandretta file, which

ironically had not been a point of contention between Syrian nationalists and the French

Mandatory power in the drafting of the Franco-Syrian Treaty.66 In December 1936, the famed

Turkish Foreign Minister and Turkey’s representative at the Council of the League of Nations,

Dr. Tevfik Rüştü Aras, informed the Secretary General that a dispute had arisen between Turkey

and France regarding the future of Alexandretta, invoking the right of each member state to bring

to the attention of the League an issue that could disturb international peace under article 11 of

the Covenant of the League of Nations to refer the matter to the Council.67

The French Under-Secretary of State for Foreign Affairs and the representative of the French

delegation at the Council of the League of Nations, M. Vienot, explained that the protection of

“ethnic minority rights” was the only conceivable reason to re-open negotiations on the future of

64 Ibid. This was clear from petitions that referred to the Tripoli region as “Northern Syria”, which implied that Palestine was essentially “Southern Syria”. 65 Ibid. 66 See Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 98. 67 Aras graduated from the Medical College of Beirut. He was a member of the Committee of Union and Progress and a good friend of Mustafa Kemal. Erik Jan Zürcher, The Unionist Factor: the Role of the Committee of Union and Progress in the Turkish National Movement, 1905-1926 (Leiden: Brill, 1984) at 49; Khadduri, “The Alexandretta Dispute”, supra note 32 at 409; Raymond Kévorkian, The Armenian Genocide: A Complete History (Basingstoke: Palgrave McMillan, 2011) at 716. See Question of Alexandretta and Antioch, supra note 24 at 1.

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Alexandretta.68 Therefore, the question of minority rights effectively became a “can-opener” for

the League to intervene. The question for the semi-periphery lay somewhere between the

minority rights method applied in Europe and the self-determination method applied in the

colonized world through the Mandate system. Although the Franco-Syrian Treaty was modeled

on the treaty between Britain and Iraq, the former contained special provisions for safeguarding

the rights of minorities. Only if the Turkish Government wished to redefine the system of

autonomous government in the Sanjak would France be willing to enter into negotiations.69 The

French government reiterated the point that whatever the new arrangement might be, it could not

go beyond the terms of the treaty, which only provided for a special administrative status for the

Sanjak. In other words, France would not sanction either the cession of the territory to Turkey or

the creation of an independent state, especially given the terms of the Mandate treaty. Article 4

of the Mandate stated:

The Mandatory shall be responsible for seeing that no party of the territory of Syria and the Lebanon is ceded or leased or in any way placed under the control of a foreign Power.70

Hence, France had to maintain a strict line, at least initially, on the sanctity of the Syrian borders,

within which Alexandretta lay. At its ninety-fifth extraordinary session, the Council of the

League of Nations adopted a resolution, with Turkey’s abstention, recommending that France

and Turkey continue their negotiations, while maintaining close communication with the

Rapporteur, M. Sandler. Additionally, the resolution noted that the President of the Council was

to appoint three observers to the Sanjak: L.J.J. Caron, former Governor of the Island of Celebes,

from the Netherlands; Hans Holstad, former President of the Commission for the Exchange of

Greek and Turkish populations, from Norway; and Charles von Wattenwyl, Colonel-Brigader,

from Switzerland.71

As the League appointed the observers, both sides in the Sanjak – the pro-Turkish and pro-Syrian

nationalists – mobilized their most-celebrated leaders. Fitted out in national dress, they took to

68 See Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 98. 69 Ibid at 410. 70 The French Mandate for Syria and the Lebanon, July 1923, (1923) 17:3 AJIL, Supp. 177 at 178. 71 Report Adopted by the Council of the League of Nations on January 27, 1937, League of Nations, Document no: C.551. M.335 (1936), (1937) LNOJ 118-120.

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the streets, where “self-determination of people [met] street performance art”.72 Observers of the

League were met with exotic parades and, as historian Sarah Shields puts it, a choice between

wearers of the fez, the Arabs and wearers of the hat, the Turks.73

Meanwhile in Syria, the French authorities had long formed alliances and consolidated power

with members of the large landholding class. This process was undertaken by strengthening

property rights and creating a francophile elite.74 The devaluation of the French franc in 1936

exacerbated the economic situation and led to a massive increase in prices in Syria.75 Against the

backdrop of the economic crisis and the general income inequalities and disparities created by a

patrimonial agricultural regime, ethnic antagonisms flared up in the Sanjak. The two Turkish

nationalist groups in the Sanjak included young men who were severely hit by the depression in

terms of unemployment and standards of living. Both groups looked to Turkey for support and

subscribed to the ideas of Kemalism and Turkish nationalism.76 The rupture in the material

conditions through the institutionalization of skewed property relations provided fertile grounds

for the intensification of nationalist conflict, and Alexandretta became the new national project

for both Syria and Turkey. Thus, local conditions were already heightened as the League of

Nations’ nation-building project in Syria.

3.1 The Negotiation Sessions At the December 1936 extraordinary session of the Council of the League, Turkey presented its

arguments for the independence of Alexandretta. Turkey’s concerns included the potential for

72 Sarah Shields “Taxonomies, Minorities, and Boundaries: The League of Nations and the Interwar Middle East” (Lecture at the UCLA Centre for Near Eastern Studies, Los Angeles, 9 November 2010). 73 Headdress was seen as an indication of identity – Arab or Turk. When the League observers saw more fezzes in an area, they would presume its wearers supported the Arab cause, and if they saw more hats pro-Turkish sentiments. The irony was that although Atatürk banned the fez in 1925, this headdress first came to the Levant from Istanbul in the early nineteenth century. Ibid. 74 Joel Benin, Workers and Peasants in the Modern Middle East (Cambridge: Cambridge University Press, 2001) at 120. 75 ‘Abd Allah Hanna, Al-Harakah Al-‘Ummaliyah fi Suriyah wa-Lubnan, 1900-1945 (Damascus: Damascus Publishing House, 1973) at 419. Hanna argues that during this time, there was a significant increase in Syrian industrialization, leading to a rising class consciousness among the workers. The anti-imperial movement gave a significant boost to the workers’ movement in 1936. However, it was eventually co-opted by the nationalist elites. See Hanna at 422. 76 Khoury, Syria and the French Mandate, supra note 38 at 502.

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the Sanjak to lose its autonomous status or, even worse, be put under Syrian suzerainty and

hence “under the yoke of a non-Turkish community.”77 The Turkish representative argued for the

independence of the Sanjak rather than its inclusion within Turkish national boundaries. He

explained that an independent, demilitarized Sanjak, engaging only in economic activities would

benefit Syria, France and Turkey alike.78 What he omitted was that Alexandretta and its main

city, Antioch, constituted the last sections of Aleppo’s commercial hinterland within Syrian

borders.79 In order to reach an equitable decision, he argued, “it was necessary that the League of

Nations should provisionally take the destiny of the Sanjak into its own hands,” and that both

Syrian and French troops evacuate the Sanjak.80

The French representative responded that the French legal position in the Levant had been

defined by the San Remo Agreement of 1920 and by Article 22 of the Covenant of the League of

Nations. Britain, having previously been involved in a similar dispute in Mosul (as will be

discussed in Chapter 2) and having an obvious stake in the former Ottoman provinces, shifted its

position from vigilant observer to important player. As social conflict in Alexandretta triggered a

diplomatic crisis in 1936, British authorities in the Middle East and the Foreign Office in London

expressed anxiety regarding the Turkish claim to the Sanjak of Alexandretta. Britain wanted to

avoid any form of social mobilization that threatened a pacified Middle East.81

The official British position, disappointed with the 1921 Franco-Turkish Agreement (Franklin-

Bouillion), found it to be legally inconsistent with the French Mandate, particularly article 7,

which established a special regime in the Sanjak.82 Some provisions of the Ankara Agreement

contradicted the text of the Mandate. For example, Article 7 recognized Turkish as an official

language, while Article 16 of the Mandate made French and Arabic the official languages of

77 Question of Alexandretta and Antioch, supra note 24 at 2. 78 Ibid. at 3. 79 Keith David Watenpaugh, Being Modern in the Middle East: Revolution, Nationalism, Colonialism, and the Arab Middle Class (Princeton: Princeton University Press, 2006) at 214. 80 Question of Alexandretta and Antioch, supra note 24 at 3. 81 Y. Olmert, “Britain, Turkey and the Levant Question During the Second World War” (1987) 23:4 Middle East. Stud. 437 at 437. 82 Correspondence between His Majesty’s Government and the French Government respecting the Ankara Agreement of October 20, 1921 (1922).

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Syria and Lebanon. Additionally in paragraphs 7-10, the Agreement gave Turkey special

privileges in the port of Alexandretta, which was arguably inconsistent with Article 4 of the

Mandate, which stipulated that the “Mandatory shall be responsible for seeing that no part of the

territory of Syria and Lebanon is ceded or leased or in any way placed under the control of a

foreign power.”83 The text of the Mandate was full of other vague phrases, such as “native

authorities” and “the wishes of the population”.84 Notably, the “wishes of the population” had

been taken to mean different things by the different actors. At times, it meant support for

France’s tutelage: at other times, it meant local autonomy within Syria borders, or even an

independent state, or was to be determined by either a commission of inquiry, or a plebiscite.

Would the wishes of the population be relevant when organizing the Sanjak’s trade agreements

and the use of its ports? Or would they be assumed on the basis of ethnic identity?

Turkey, for its part, redoubled its efforts to gain control over Alexandretta, having lost the oil-

rich, predominantly Kurdish Vilayet of Mosul to Iraq in 1926.85 As we will see in the next

chapter, the settlement of Mosul’s final status in favour of the British Mandate of Iraq was one of

the reasons why Turkey’s membership in the League of Nations – and hence in the new postwar

community of nations– was postponed.86 Therefore, Turkey used every opportunity at the

League of Nations to make international law arguments for Alexandretta’s independence from

Syria.

Franco-Turkish negotiations were resumed in the presence of the League’s Rapporteur, Mr.

Sandler, in January 1937. After a week of negotiations, an agreement was reached, and Mr.

Sandler submitted a report to the Council of the League. The report included a number of

principles, including the status of Alexandretta as a “separate entity”; Turkish as an official

language; and the protection of certain rights and facilities to be enjoyed by Turkey, specifically

83 Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 45, 50, 56. 84 Ibid. 85 Keith D. Watenpaugh, “‘Creating Phantoms’: Zaki Al-Arsuzi, the Alexandretta Crisis, and the Formation of Modern Arab Nationalism in Syria” (1996) 28:3 Int’l J. Middle E. Stud. 363 at 369, 370. 86 Yücel Güçlü, “Turkey’s Entrance into the League of Nations” (2003) 39:1 Middle East. Stud. 186 at 190. Güçlü argues that Turkey would have entered the League of Nations directly after the adoption of the Lausanne Treaty if it had not been for the question of Mosul.

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its use of the port for transit trade.87 After adopting the Sandler report, the Council set up a

committee to investigate the situation and to draft a Statute and the Fundamental Law for the

Sanjak of Alexandretta. The observers previously appointed would continue to provide

assistance to the committee.88 Five of the six experts on the committee had long experience in

diplomacy and the administration of “semi-peripheral” colonies from Syria, to India, to the

Dutch Indies.89 The terms of the French Mandate for Syria and the Lebanon stated that anything

that was not agreed upon in the text of the mandate would be determined by the Council of the

League of Nations. Notably, Article 1 of the Mandate treaty gave the mandatory power the

authority to frame an organic law for the territory in agreement with the “native authorities”.90

There was no mention of any additional comprehensive laws to govern the territory. However,

the Council of the League of Nations asserted the capacity to draft governance legislation on a

similar scale. League-appointed experts drafted the Fundamental Law for the Sanjak of

Alexandretta and this Law created an electoral system and a legislative assembly with

representation from the different communities in the Sanjak.91 The proportion of seats was to be

determined by the number of registered voters in each community, which led to an escalation of

efforts by both sides to increase the number of registered voters in their community.

3.2 Sessions of Nation-building in Geneva The final settlement was agreed upon in the League’s resolution of January 27, 1937, and was in

accordance with Article 15 of the Fundamental Law drafted by the League-appointed committee

and adopted by the Council of the League of Nations in May 1937. In October 1937, the

87 Question of Alexandretta and Antioch, supra note 24 at 9. 88 Shields, Fezzes in the River, supra note 56 at 77. 89 Ibid. at 101. The Committee of Experts was chaired by Maurice Bourquin (Belgium), Professor at the University of Geneva; Robert de Caix, Secretary-General of the French High Commissioner’s office in Syria from 1925 to 1938, and France’s representative to the League of Nations Mandates Commission; Sir James MacDonald Dunnett, Reforms Commissioner for the government of British India; Dr. R. A. Kollewyn (Netherlands), Professor at the University of Groningen and judge in the Dutch Indies; Numan Menemencioğlu, Secretary General of the Turkish Ministry of Foreign Affairs; and Karl Ivan Westman, Sweden’s representative to the League of Nations (representing Rapporteur Sandler). 90 The French Mandate for Syria and the Lebanon, supra note 70 at 177. 91 Report to the Council of the League of Nations by the Commission appointed by the Council of the League of Nations to organize and supervise the first elections in the Sanjak of Alexandretta (7 July 1938), League of Nations Archives, at 15.

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President of the Council appointed a Committee of Experts to study questions relating to the

drafting of the Statute and the Fundamental Law of the Sanjak.92 The members intended to meet

five days later, and then proceed to the Sanjak to start the work of the Commission.93

According to the Fundamental Law, a plebiscite on the future of Alexandretta was to be

conducted in the Sanjak and supervised by this electoral commission.94 Article 9 of the

Fundamental Law stipulated that to be eligible to vote, electors should register as one of the

following communities: “Turkish community”, “Alawite community”, “Arab community”,

“Armenian community”, “Greek-Orthodox community”, or “Other communities.”95

Both the Statute and the Fundamental Law explicitly excluded members of the population who

were not “able to read and write” and women from participating in the plebiscite.96 Unlike the

European plebiscites, where women had the vote, the plebiscite in the Sanjak became

inaccessible to large sectors of the population. Participation was constrained by social class and

gender.97 This was also reflected in the work of the Special Tribunal, discussed in the following

section. Domestic legislation in Syria and Lebanon prohibited the right to vote for women.

92 Question of Alexandretta, C.460.1937 (October 6, 1937) League of Nations Archives. The Commission was comprised of the following members: M. Jacques Lagrange (Belgian), former Secretary-General of the Mixed Committee on Greco-Bulgarian Emigration; M. H. Ch. G. J van der Mandere (Dutch), former District Inspector of the Saar Plebiscite and Director of the People’s University, The Hague; Mr. T. Reid, C.M.G, (British), former Mayor of Colombo; M. H. Reimers (Norwegian), former Judge at the Supreme Court of the Saar Plebiscite; Barrister at the Supreme Court of Norway; and M. Roger Secretan (Swiss), Professor of Law at the University of Lausanne. 93 Ibid. 94 The electoral commission consisted of Thomas Reid (Britain, former member of the Assembly of Ceylon), Jaques Lagrange (Belgium, former Secretary-General of the Commission for Greco-Bulgarian Immigration), H. Ch. G. J. Van Der Mandere (Holland, Rector of the Hague University), H. Reimers (Norway, former judge of the Saar plebiscite) and Roger Secretan (Switzerland, Professor of Law at the University of Lausanne). 95 The Fundamental Law of the Sanjak of Alexandretta. Approved by the Council of the League of Nations, May 29, 1937, entered into force November 29, 1937. League of Nations Doc., C. 282.M.I83.1937 (Article 9) League of Nations Archives at 20. Article 10 stipulates that “the number of deputies and the number of electors at the second stage allotted to each community, in the Sanjak as a whole, shall be determined by the number of electors registered as belonging to such community. Whatever the result of this computation, however, each community shall be assured of a minimum number of deputies, as follows: Turkish…8, Alawite…. 6, Arab … 2, Armenian … 2, Greek Orthodox … 1.” 96 Ibid. art. 8. Notably article 7 of the Fundamental Law excluded female inhabitants from participating in the plebiscite. 97 Sarah Wambaugh, Plebiscites Since the World War: With a Collection of Official Documents (Washington: Carnegie Endowment for International Peace, 1933) at 514. Karen Knop, Diversity and Self-determination in International Law (Cambridge: Cambridge University Press, 2004) at 297.

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However, a 1920 parliamentary debate in Syria and Lebanon (more than a decade before the

plebiscite) already showed the willingness of many members of parliament to adopt women’s

suffrage, especially noting that Islamic Shari’a “specified that the woman should govern, work,

be knowledgeable and eloquent.”98 Significantly, the influential legal scholar, Shaykh Sa’id

Murad al-Ghazi (delegate of Gaza in the parliament), explained that this would deny Westerners

a pretext for guardianship over the East “whose one half of society has been decreed to be

ignorant.”99 Perhaps because the committee of experts drafting the Fundamental Law for the

Sanjak realized that women’s suffrage had become a resistance tactic against European tutelage

over Syria and the Lebanon, the committee chose to maintain the existing exclusion of women

and to limit it to certain social classes.

According to the President of the Commission, it was the Commission’s responsibility to ensure

that people would be “free” to register “in the communities to which they actually belonged.”100

He argued that any disruption to this communal classification by accepting what he referred to as

“incorrect declarations” might “destroy the whole communal basis built up in the Fundamental

Law.”101

The Turkish representatives contested the League’s policy of testing the authenticity of peoples’

claims to membership in a particular national community. In a telegram sent to the Commission,

the Turkish representative claimed the plebiscite was essentially a census because the process

was not about determining the wishes of the population, but about registering them with the

appropriate community. Therefore, the Commission had to “verify the ‘race’ of electors.”102 The

President of the Commission disputed the Turkish claims, stating that the word “race” was not

even mentioned in the Commission’s electoral regulations. The electoral regulations, he argued,

98 “Women and the Vote in Syria: A Parliamentary Debate About the Relationship Between Gender and Citizenship in the Proposed State” (April 25, 1920), translated by Akram Khater, available at: http://college.cengage.com/history/primary_sources/world/women_vote_syria.htm 99 Elizabeth Thompson, Colonial Citizens: Republican Rights, Paternal Privilege, and Gender in French Syria and Lebanon (New York: Columbia University Press, 1999) at 120. 100 Question of Alexandretta: Comments by the President of the Commission for the Elections in the Sanjak of Alexandretta on the observations made by the Turkish Government in its telegram of December 24, 1937 C.60.1938 (January 26, 1938) League of Nations Archives at 3 (emphasis added). 101 Ibid. at 4. 102 Ibid. at 3, 4.

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following the Fundamental Law, distinguished between communities, and not races. The

Commission merely tried to extract the necessary facts about the electors’ language, religion,

etc.103 It requested voters to state “in good faith” their language, religion and other factors that

the Commission deemed necessary to determine their entitlement to vote.104 These additional

questions were especially contentious for the commissioners when voters were deemed to be

“suspicious” or registered with “incorrect” communities.105 More importantly, these declarations

were necessary for the League’s Commission to ensure the “correct classification, according to

communities.”106 Incorrect declarations, the President of the Commission argued, might lead to

“farcical as well as tragic” results.107

The question of whether the Commission was managing a census or a plebiscite reappeared later

in the negotiations. Turkey had claimed that the League of Nations’ Commission was effectively

holding a census, not a plebiscite. While a census would determine the composition of the

population for surveys and possibly social policy, a plebiscite would be a democratic process and

a mechanism for the Sanjak’s self-determination. A plebiscite would not necessarily lead to “rule

by majority race” because people identified with several communities, criss-crossing the

boundaries imposed by the League of Nations. In both scenarios, the League’s categorization of

the population was fundamentally political and constitutive of the new forms of identities

necessary for the “legalization” of life in the Sanjak. A person would henceforth not only

identify culturally as an Alawite, but would be legally categorized in the state (and the League of

Nations’) registers as an Alawite – thereby excluding the person from belonging to other

communities from a legal point of view.

Despite the Commission’s assurances that it was holding a plebiscite to determine the democratic

wishes of the population, this position became more ambiguous as the negotiations went further.

103 Ibid. 104 Ibid. 105 In European plebiscites, these additional questions were also a means to gather more information on the voters and the subject territory and, by doing so, to establish systems of control and monitoring over the people and the land. 106 “Question of Alexandretta: Comments by the President of the Commission for the Elections in the Sanjak of Alexandretta”, supra note 100 (emphasis added). 107 Ibid.

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The debate in Geneva moved whether the Fundamental Law provided for a public plebiscite or

for the establishment of certain facts.108 The problem was that in most of the old registers of the

Ottoman État Civil, division was based on religious grounds and largely informed by the millet

system,109 whereas the system devised by the Council of the League of Nations, which the

Commission could not question, had to do not with religion, but with the seven communities

identified in the Fundamental Law.110 The Commission explained the problem: “the Arabs, who

were not Alaouites nor Greek-Orthodox, were of the Sunnite denomination, and so were the

Turks.”111 Therefore, other considerations had to factor in, such as the electors’ mother

tongue.112 M. Menemencioğlu, the Turkish representative, argued that under the former Ottoman

Empire, the term “community” referred to a religious not a racial community. The Fundamental

Law, however, referred to community in its racial sense.113 The main dividing line was between

Arabs and Turks, but there were other large communities, such as the Alawites and the Greek-

Orthodox. In Syria, the Alawites identified as “Arabs”. There was no distinction between

Orthodox Greeks and Armenians; they were both identified as “Orthodox”.114 Therefore, it was

very difficult, according to the Turkish representative, for any external body to assume the role

of a qualified arbiter with respect to such issues. M. Menemencioğlu further explained that a

similar situation was confronted during the Greek-Turkish population exchange. There, it was

decided that all Muslims would be sent back to Turkey, irrespective of race, because it was

impossible to eliminate the religious factor altogether.115 Although, the Committee of Experts

had previously recommended incorporating the religious factor in the League’s determination of

108 Document received September 27, 1938, League of Nations Registry (1938) League of Nations Archives at 3. 109 Ibid. at 5. 110 Ibid. 111 Ibid. 112 Ibid. at 7. 113 Meeting held at Geneva on Monday, March 7, 1938. Chairman: M. K. I. Westman (1938) League of Nations Archives at 14. 114 Ibid. at 19. 115 Ibid. at 15.

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the future of the Sanjak, “the arrangement reached at Geneva was wholly based on the principles

of communities” as racial categories.116

The Turkish representatives at the Council of the League used the millet system and the existing

political and civil system inherited from the Ottoman Empire to argue against the League’s

policies in Alexandretta. This however, did not preclude their secular nationalist propaganda

efforts in the Sanjak. Throughout the entire process, Turkey took every opportunity to counter

the dominant narratives in Geneva. M. Menemencioğlu even employed the term “racial wishes,”

in the negotiations sessions at Geneva, to argue that electors should be free to register with

whatever “race” they choose.117 The Turkish representative argued that race was a voluntary

category, not an innate or an inherent characteristic to be scientifically determined by colonial

officers. The British representative, Mr. Rendel, who had quite an influential role in the

negotiations, claimed that such freedoms would negatively influence registration. He claimed

that these communities were already clearly defined and identified as such. The Fundamental

Law, he argued, stipulated that electors should register as members of one of the communities

identified, not as individuals wishing to become members of a given community in the future.118

At the League’s Council session, he warned that

[t]he Committee should not overlook the fact that the Fundamental Law rested on one incontrovertible reality: the division of the population into a number of communities. Those communities must be allowed to survive.119

To protect this “one incontrovertible reality”, Mr. Rendel suggested that there should be a

method devised to check the authenticity of the declarations of national identities by electors. M.

Menemencioğlu explained that the population of the Sanjak was not sharply divided along ethnic

116 Ibid. at 18. 117 Fourth Meeting: Examination and first reading of the texts drawn up by the Commission for the organization and supervision of the elections in the Sanjak of Alexandretta and by the representative of Turkey. (Document C./Elec.Alex./2), March 9, 1938, at 4 pm (1938) at 44, League of Nations Archives (emphasis added). 118 Ibid. at 49. 119 Ibid.

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lines “into readily recognizable categories.”120 Even the mother tongue criterion was utterly

ineffective since many families in the Sanjak were bilingual.121

These policies from Geneva sparked large mobilizations against this national confessional

program, which presumed clear divisions between the communities and singular identities that

never existed in this form. Despite the strong nationalist mobilizations in the Sanjak, many

residents attempted to resist the system on its own terms through registering as “other” instead of

“Turk” or “Arab” or one of the other categories. This infuriated the Turkish side, which

eventually declared that Sunni Muslims could no longer register as “other,” reserving this

category for minorities who could not claim any other affiliation, such as Jews or Catholics.122

3.3 The National Confessional Program The commissioners adjusted the voting procedure according to an agreement reached between

Turkey and France and passed by the League of Nations in March 1938, making it a confessional

system by self-declaration.123 To impress upon the electors the seriousness of committing

electoral fraud – that is declaring their membership in one community to which they did not

genuinely belong, electors would have to sign a declaration or oath.124 M. Menemencioğlu

completely rejected this approach, presenting the Council with the following scenario:

an Alawite, speaking Arabic only, asks to be registered with the Arab community. Being of Arab stock, he is able to do so; yet according to Mr. Rendel’s proposal, he is obliged to sign a statement, because he belongs in fact to the Alwaite community. The Commission then warns him that he is about to renounce his Alawite allegiance and to espouse the Sunni faith. The very thought that he might become renegade would certainly influence his mind to an enormous extent. It was therefore quite impossible to contemplate any procedure of this character.125

120 Ibid. at 46. 121 Ibid. 122 Sarah Shields, “From Millet to Nation: The Limits of Consociational Resolutions for Middle East Conflict” (2010) European University Institute Working Paper at 11. 123 Watenpaugh, “Creating Phantoms”, supra note 85 at 370. 124 Fourth Meeting: Examination and first reading of the texts drawn up by the commission for the organization and supervision of the elections in the Sanjak of Alexandretta and by the representative of Turkey, supra note 117 at 47. 125 Ibid. at 48.

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M. Menemencioğlu explained that there was a significant difference between asking electors

whether their declaration was made in full freedom without any form of pressure and asking

them to sign a declaration.126 There were acts of further intimidation by the presence of the

mukhtars and mudirs (local headmen) representing all the communities, who were present at the

polling stations to identify voters and to “prevent fraud.”127 Through these headmen, the

Commission could have access to local knowledge and ensure that voters’ declarations of

national identity were authentic.128

The new confessional or self-declaratory system sparked Sanjak-wide clashes between both

groups. Amidst rumours about Turkey’s mobilization of its army on the frontiers, French

authorities in Damascus sent 1,000 Moroccan troops to the Sanjak. The commissioners,

concerned about the security situation, had to suspend registration and leave. They later

complained to the Secretary General of the League claiming that the situation did not warrant

their presence in the Sanjak.129

The national confessional program accentuated the League’s role in crafting national identities

and in creating benchmarks for singular “authentic” identities.130 Individuals were required to

declare their “true” identity even when such identities were incoherent, changeable and

overlapping. To categorize individuals along ethnic and racial lines was already to fabricate a

new social order. The categories also fabricated an entirely new legal system of identity through

the national confessional program which did not reflect the realities of identity formation in

Alexandretta.

126 Ibid. at 48. 127 “Question of Alexandretta: Comments by the President of the Commission for the Elections in the Sanjak of Alexandretta”, supra note 100 at 6. 128 Ibid. 129 Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 220, 223. 130 On the invention of the “authentic” in other colonial contexts, see, for example, Terence Ranger, “The Invention of Tradition in Colonial Africa” in Eric Hobsbawm and Terence Ranger, eds. The Invention of Tradition (Cambridge: Cambridge University Press, 1983) 211 at 250.

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3.4 The “Technical” Special Tribunal and the Ethno-Class Politics of Nation-Building

The Commission instituted what it referred to as a “purely technical” set of regulations for the

smooth functioning of the elections.131 The technical issues were, in reality, political and were

influential in the formation of national identities in the Sanjak. The penal clauses for electoral

offences, deemed “technical” in nature, were heavily disputed by Turkey as political tools. While

the President of the Commission himself admitted that some of the clauses were “somewhat

severe” but that such clauses were “necessary in the Sanjak for the conduct of elections.”132

Some of these penal clauses severely restricted individual liberty and infringements were

punished by sentences up to twenty years of imprisonment.133 Other offences, such as “menacing

demonstrations, [which] disturb registration or voting or an election meeting,” would be fined

from 100 to 200 Syrian pounds.134 And if the freedom of registration was compromised, the

offender would face between two months and two years of imprisonment.135

The electoral Commission of the League of Nations created a Special Tribunal to hear cases

involving any infringements or electoral offences.136 There was some debate as to whether an

extraordinary tribunal was needed when the local courts could handle these cases.137 Eventually,

the Tribunal was created in Antioch and promulgated a number of electoral rules. Notably,

similar arrangements in Europe, such as the Allenstein and Marienwerder plebiscite, maintained

domestic codes on electoral violations.138 In less than two months, the total number of

complaints to the Tribunal reached 280, 100 against Turks and 108 against members of other

131 Question of Alexandretta: Comments by the President of the Commission for the Elections in the Sanjak of Alexandretta, supra note 100 at 2. 132 Ibid. 133 Question of Alexandretta: One Hundredth Session of the Council, Third Meeting (Public and Private), held on Friday, January 28, 1938 at 3:30 pm, Geneva (April 23, 1938) League of Nations Archives. 134 Sixth Meeting: Examination and first reading of the texts prepared by the Commission for the organization and supervision of the first elections in the Sanjak of Alexandretta, and by the Representative of Turkey (Document C/Elec.Alex./2) held at Geneva on Friday, March 11, 1938, 10 am at 137. 135 Ibid. 136 Ibid. at 140. 137 Ibid. 138 Wambaugh, Plebiscites Since the World War: With a Collection of Official Documents, supra note 97 at 124.

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communities.139 The Tribunal eventually tried cases raised by Turks, Arabs, Alawites and Kurds.

It gave judgments in only sixteen of the twenty-eight cases referred to it.140 Registered cases

mainly concerned refusal to furnish assistance (article 63), gifts and inducements (article 65),

menaces and violence (article 66), false declarations (article 69), improper registration (article

70) and disturbance of electoral proceedings (article 74). Most significant was the offence of

“false declarations”, which occurred when members of one community declared their

membership in another community when registering for the elections. However, the testimony in

court demonstrated that, as mentioned earlier, national identities and community affiliations were

not predetermined, fixed, or mutually exclusive.141 On the contrary, Alexandrettans changed

their identities for political and economic motives.142

Thus, because a person had to register according to their “authentic” community, the League

distinguished the authentic from the false according to their assumptions about national identity

in the Sanjak. At the same time, local nationalist leaderships on all sides embarked upon a

comprehensive propaganda campaign. The League reported instances of “propaganda agents

imported from outside the areas concerned.”143 In the Ak-tepe section of the territory, a number

of Sunni Muslims and Kurds were pressured by propaganda agents from the People’s Party of

Antioch, leading eventually to shootings at the election board’s offices.144 Most of the villages in

this district belonged to Turkish farmers, or aghas, employing Arab, Alawite, or Kurdish

agricultural labourers, or fellahin. According to the League’s Commission, the fellahin had been

subject to threats and abuse by the Turkish landowners.145

The ethno-national division used by the League also corresponded to deep class divisions. By

May 1937 in the Rihanie section, conflict broke out completely between landowners and

139 Report of the Commission for the Organization and Supervision of the First Election in the Sanjak, C.261.1938, Geneva (August 20, 1938) League of Nations Archives at 3. 140 Ibid. at 5, 7. 141 Shields, Fezzes in the River, supra note 56 at 10. 142 Ibid. 143 Report of the Commission for the Organization and Supervision of the First Election in the Sanjak, C.261.1938, supra note 139 at 41. 144 Ibid. 145 Ibid.

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workers.146 In one instance, two carloads of fellahin intending to register as Arabs were fired at

by Turkish agitators.147 The League’s Commission reported that Turkish and Kurdish residents

of three villages refused to come before the Rihanie election board for registration because they

were subject to acts of violence committed by Arab propaganda agents. A number of wounded

men were brought before the election board, but representatives of the Turkish community

refused to attend the meeting to protest the acts of intimidation and violence to which the Turkish

community was subjected.148 Frequently, Alexandrettans would register under a community

different from the one to which “they were known to belong,” or alternatively they would reject

the ethnic classifications forced upon them.149 The former were perceived as “renegades” by

members of their communities and accordingly became victims of reprisals. The latter group

were subject to violence and pressure by local agitators.150 In both cases, Alexandrettans were, in

their own way, rejecting the League’s categories and in the process renegotiating the terms of

governance in the Sanjak.

The work of the Special Tribunal was directly implicated in the escalation of violence within the

different communities. For fear of reprisals, non-Turks described by the Tribunal as accused,

witnesses, or plaintiffs did not appear in person.151 Some plaintiffs were subsequently attacked or

imprisoned after appearing before the Tribunal. In cases of violence by Turkish aghas from

Amouk and Turkish landowners against their Arab labourers in order to force them to add their

names to the Turkish lists, some witnesses could not be brought in before the tribunal.152 The

Kurds were offered large sums of money if they mobilized other Kurds to register as Turks.

Similar efforts were made towards the Greek Orthodox and Armenian communities in the

146 Ibid. 147 Ibid. at 42 148 Ibid. at 41 149 Ibid. 150 Ibid. 151 Ibid. at 9. 152 Ibid.

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Sanjak. A director of one of Turkey’s largest banks at the time promised to give borrowers better

terms and better prices to those selling silk if they registered as “Turk”.153

Initially, according to the prosecutor of the Tribunal, Pierre Burnier, the Tribunal worked in

harmony and collaboration with the local judicial authorities.154 However, by June 1938, a

decision was made that military jurisdiction would supersede all civil jurisdiction. This meant

that the normal operation of the Special Tribunal would be jeopardized.155 Eventually, the

Special Tribunal closed its offices on July 6, 1938, leading to an atmosphere of fear, reprisals

and intensification of nationalist conflict and competition.156

3.5 Settlement, Petitions, Celebrations and a General Strike The Statute of the Sanjak came into force in November 1937 and it identified the Sanjak as a

“separate entity enjoying full independence in its internal affairs.”157 Its citizens would include

residents of the Sanjak, those who previously resided in the Sanjak and those whose fathers (not

mothers) were from the Sanjak. The Statute identified both Turkish and Arabic as the official

languages. It also created a Turkish free zone, which Alexandretta would lease to Turkey for

fifty years. The Fundamental Law organized the Sanjak’s system of government, guaranteed

citizens certain basic rights and demilitarized the Sanjak, thus prohibiting the creation of armed

forces, conscription and the manufacture or storage of weapons.158 These issues were not voted

upon in the plebiscite, but were the result of agreements between the League of Nations and the

French and Turkish representatives.

As the Council adopted the Fundamental Law and the Statute for the Sanjak, attendees

celebrated reaching a peaceful resolution to the conflict and, more importantly, contributing to

the broader efforts of the League of Nations to establish peace.159The League’s settlement of the

153 Shields “Taxonomies, Minorities, and Boundaries”, supra note 72. 154 Ibid at 8. 155 Ibid. at 8, 9. 156 Ibid. at 9. 157 Shields, Fezzes in the River, supra note 56 at 109. 158 Ibid. 159 Ibid. at 110.

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Alexandretta dispute sparked large demonstrations in Damascus. Syrians of all classes took to

the streets chanting nationalist slogans, and attacking France and the League of Nations.160 A

general strike was declared and all the shops shut down. Anti-Turkish demonstrations spread

across Syria including Antioch, Alexandretta and Latakia. The League for National Action

declared that the Franco-Turkish Agreement was in violation of the Franco-Syrian Treaty and an

encroachment on Syrian national sovereignty.161

Syrians flooded the League’s petition mechanism with complaints about its management of the

dispute and the new Statute of Alexandretta, which was characterized by the petitioners as “an

injustice to Syria and the Arabs, whose interests have been sacrificed by France to force and

tyranny.”162 Other petitions protested the prohibition on flying the Syrian flag on official

buildings in Alexandretta, which was described as “in violation of Arab feeling” and contrary to

the Covenant of the League of Nations.163 They also protested the closure of the Aronsa Club,

the suspension of a newspaper and the further authorization of Turkish elements in the Sanjak to

continue with their nationalist propaganda in Alexandretta.164

In 1938, while the League was discussing the dispute in official session, France and Turkey had

struck a secret deal: France promised Turkey a majority of Turkish votes in the new Sanjak

Assembly.165 This deal never materialized. With the blessings of Paris, Turkish troops entered

Alexandretta in July 1938.166 Eventually, the Turks succeeded in holding the majority of 22 seats

in the Sanjak’s national assembly.167 In the Sanjak’s first national assembly, (September 1938),

160 “Syria Angry at Alexandretta Settlement: Demonstrations in Damascus” (29 January 1937) Daily Telegraph, League of Nations Archives. 161 “The Alexandretta Agreement: Syrian Resentment” (30 January 1937) The Times, League of Nations Archives. 162 Petitions (sixteen in number) concerning the Sanjak of Alexandretta (C.P. M. 2032): Report by Mile. Dannevig (November 5, 1938) League of Nations Permanent Mandates Commission, Thirty-fifth Session, Syria and Lebanon, Geneva, League of Nations Archives. 163 Ibid. 164 Ibid. 165 Shields “Taxonomies, Minorities, and Boundaries”, supra note 72. 166 Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-determination and Transition to Democracy (Dordrecht: Martinus Nijhoff Publishers, 1994) at 88. 167 Alawaites got 9 seats, Armenians 5 seats, Arabs 2 seats and Greek Orthodox 2 seats. Shields, Fezzes in the River, supra note 56 at 205. See also, Robert Fisk, The Great War for Civilization: The Conquest of the Middle East (New York: Alfred A. Knopf, 2005) at 335.

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the French and Turkish military companies did the honours with the Turkish national anthem in

the background.168 The Sanjak’s name was changed to “Hatay” or “the Land of the Turk” and

Kemalism was endorsed as the official ideology of the state.169 The settlement for Alexandretta

would later be celebrated by the League and Turkey as one that “would stand out on the map as

one of those areas in which the League method of conciliation had been vindicated.”170 Barely a

year had passed before the Hatay was finally ceded to Turkey and a Franco-Syrian agreement

christened Hatay as the sixty-third province of the Turkish Republic.

Petitions to the League of Nations after the settlement referred specifically to the violation of the

self-determination of the Syrian people, citing the text of the Mandate treaty. M. Rappard, the

League’s rapporteur responsible for all petitions concerning the Sanjak, received these petitions,

but concluded that the petitions “had become purposeless.”171 The petitioners claimed that

France’s actions were contrary “to the principle of self-determination, equity, democracy, the

Franco-Syrian Treaty, the dignity and prestige of France and the League of Nations, the

reputation of Europe….”172 M. Rappard, stuck in the legalism of the League’s structures,

rejected the petitions because “had they been better advised,” he thought, the petitioners would

have invoked a much stronger legal argument: France was in violation of Article 4 of the

Mandate treaty, which stipulated that the Mandate shall not cede any part of the mandated

territory. Ironically, the same argument had been invoked several times in earlier petitions.173 At

the same time, M. Rappard provided no explanation as to why Article 4 of the Mandate treaty

was blatantly disregarded by France. The policies of the League, therefore, must be understood

not only in relation to the legal text, but also in relation to the institutional biases, as well as

processes beyond the legal institution. The meaning of the legal texts became determinate

through the internal debates on the legality of the Alexandretta settlement and the social context

168 Shields “Taxonomies, Minorities, and Boundaries”, supra note 72. 169 Güçlü, The Question of the Sanjak of Alexandretta, supra note 11 at 237. 170 Vernon Bartlett, “Successes for the League: Alexandretta Compromise at Geneva” (25 January 1937) League of Nations Archives. See also “Syrians Aghast at French Leniency to Turkey” (20 June 1938) Great Britain and the East, League of Nations Archives. 171 Syria and Lebanon: Examination of the Annual Report for 1938, supra note 40 at 222. 172 Ibid. 173 Ibid.

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that produced this international legal system in the first place, manifested on a micro level by the

alliances built between the League, the colonial presence and the elites, as will be discussed in

the following section.174

Nation-Building between the Elites and the League 4In an interview with Gertrude Bell in 1919, Ihsan al-Jabri, an upper class nationalist from

Aleppo, had expressed concern over his city’s access to the port of Alexandretta and preferred

nominal Turkish suzerainty over all the Arab provinces.175 Along with several others of his

social class, the ulama and ashraf, he warned against the disastrous economic implications of the

proposed separation of Syria from Turkey, revealing a pro-Turkish sentiment common among

many Aleppan notables during this period.176 While al-Jabri and others were forming alliances

with Turkey, one month before the occupation of Syria, a large group of merchants sent a

telegram to the French High Commissioner in Beirut requesting that Alexandretta, Aleppo and

Cilicia be under French control.177 Many years prior to the dispute over Alexandretta, alliances

were already forming between the commercial class, the Mandate and the Turkish elite.

At the start of the 1930s, France started consolidating its power among the Armenian, largely

refugee, population. This was done through concerted efforts to integrate the refugees into

modern urban society as members of “the respectable middle class.”178 The French High

Commissioner, Henri Ponsot explained this process at a meeting of the Central Committee for

Refugee Aid in Beirut, in June 1931:

…With the Armenians, what one fears is that as soon as they have a little savings, they will wish to go elsewhere. This must be avoided, and to avoid it, we must make of them small-property owners, of a house, of a land or of a field. This task is underway: what has been done in the Levant toward this goal does honor to the League of Nations.179

174 Here, I depart from Sarah Shields in my position that the League’s policies in the Sanjak were not unfortunate exceptions, but the very basis of its structural legality and political commitments. 175 Gelvin, Divided Loyalties, supra note 46 at 83. 176 Ibid. 177 Ibid. 178 Quoted in Watenpaugh, Being Modern in the Middle East, supra note 79 at 288. 179 Ibid.

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French policy aimed at creating a new ethnic middle class of Armenian refugees by buying urban

land and selling or renting it to Armenians.180 The other initiatives intended to integrate the

Armenian population included their employment in public and private enterprises. This

procedure was also an instantiation of the French and the League of Nations’ minority policy. By

giving them access to property, trade and employment, these processes consolidated the

Mandate’s relationship with the new rising Armenian middle class.181 These processes took place

throughout Syria, where refugee camps were transformed into urban neighbourhoods in Aleppo,

Beirut, Damascus and agricultural installations along the Turkish border, and specifically in the

Sanjak of Alexandretta. These League of Nations’ social initiatives were promoted as part of the

League’s successful accomplishments in Syria. The 1936 Nansen Office Report to the League of

Nations celebrated that the transformation by these League-orchestrated projects of Syrian and

Lebanese cities “from Oriental to modern cities.”182

Similar alliances were formed between the nationalist Syrian elite, the French Mandate and the

League of Nations. During the conflict over Alexandretta in the 1930s, nationalist speeches in

Syria emphasized the specificity of the Syrian “race” and the importance of internal ethnic

homogeneity. A memorandum, on the application of the French Mandate in Syria stated: “Of all

the component parts of the old Ottoman Empire, Syria was the one that gave least anxiety to the

government in Constantinople. By nature a law-abiding race, influenced also by the philosophy

that is peculiar to the East and not in any sense given to the worship of the material, the Syrians

accepted the status quo…”183The role of the celebrated, Sorbonne-educated theorist of Arab

nationalism, Zakī al-Arsūzī, in Alexandretta was instrumental in organizing in the Sanjak along

nationalist lines.184 Al-Arsūzī was, like many Arabs in the Sanjak, of the Alawi sect. He was

inspired by “racialism”, which became the basis of the intense nationalist agitation that he led

against the Turks in the Sanjak from 1936 to 1938 and that eventually led to his expulsion from

180 Ibid. 181 Ibid. at 289. 182 Ibid. 183 The Syrian American Society of the United States, Memorandum on the Application of the Mandatory System of the League of Nations by France in Syria (Washington D.C.: Press of C. H. Potter & Co., Inc., 1926) League of Nations Archives at 3, 4. 184 Hanna Batatu, Syria’s Peasantry, the Descendants of its Lesser Rural Notables, and their Politics (Princeton: Princeton University Press, 1999) at 135.

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Alexandretta.185 Most significantly, al-Arsūzī invoked national self-determination discourse in

the Sanjak and elsewhere in Syria. Many of his ideas were formative of what later became the

Arab Ba’ath Party.186 In one of his prolific exposés, al-Arsūzī lay bare his basic drive for the

national self-determination of the people of Alexandretta to join in with their Syrian brethren:

“I was before that an Arab, I felt that I had been born into an Arab family, I felt that I was different from my neighbors, the Turks, in taste and way of life. From the day the name of the Arab nation first reached my ear, Arabism [‘uruba] became the direction of all of my hopes and my true faith. I thought of nothing other than the Arab resurrection [baa'th] from that moment. I answered the voice crying out from the depths by swearing that my life would be dedicated to the resurrection of the nobility of my nation. Did not my mother just yesterday release me from my vow to al-Khidr? That very day I renewed my oath [but this time] to Arabism.”187

Here, al-Arsūzī identified the “nobility” of the Arab nation, a nation that was different from the

Turkish nation. In fact, Arab nationalism became the new “faith” of nationalists in Syria (and

elsewhere). In a memorandum sent to the League of Nations on the question of Alexandretta,

Antoun Sa’adeh, charismatic intellectual and leader of the Syrian Social Nationalist Party

(SSNP), stated that the party was radically opposed to the Turkish manoeuvre to separate part of

the Syrian nation on the pretext of the existence of a Turkish minority in the territory.188 He

claimed further that the SSNP demanded that the League of Nations and especially the civilized

nations support the Syrian position and refrain from providing “queer solutions” to the

Alexandretta question, ultimately leading to a conflict in the Near East.189 On the other hand, the

mostly Turkish landowning class (unlike the Arabs among them) in the Sanjak welcomed the

intervention of the League of Nations. They especially welcomed the prospect of local autonomy

185 Ibid. Nationalist activists in Syria used the petition mechanism of the League of Nations to protest the expulsion of Al-Arsūzī (Nos.8, 9, 10, 11, 12, 13, 14, and 15). The petitions stated that the expulsion was “due to the desire to prevent Arabs from voicing their grievances at the elections.” The French Government explained that Al-Arsūzī was the leader of the Ligue d’Action Nationale “formed by the most ‘combative’ Arabs of the Sanjak.” The Commission declared that no action should be taken with regard to the petitions submitted. See Petitions (sixteen in number) concerning the Sanjak of Alexandretta, supra note 162. 186 Ibid. 187 Watenpaugh, “Creating Phantoms”, supra note 85 at 364 (emphasis added). Al- Khidr is a revered figure in Islam. 188 Antuun Sa’aadah, “Muthakarah Ila al-‘Assabah al-Omammeyya ‘Hawl Qadeyat al-Iskandaronah (1936)” in Antuun Sa’adah, Mukhtarat fii al-siyaasah al-dawliyyah wa-al-wada’ al-Souri (1921-1949) (Damascus: Dar Fikr Lilabhath wa al-nashr, 1992) 215 at 215 (translation is mine). 189 Ibid. at 216.

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where they would exert a large influence over the politics and governance of the Sanjak.190 The

nationalists (who were not part of the Sanjak’s elite landholding class) on both sides, however,

had expressed strong sentiments against the League of Nations’ intervention.

Similarly, President Atatürk, in his 1936 address to the Grand National Assembly, said that the

Turkish “nation is engaged night and day with a great cause; it is the destiny of the region of

Antioch and Alexandretta which, in truth, are purely Turkish. It is our duty to never cease being

earnest and resolute on this issue.”191 Arab nationalism and Kemalism shared a striking

commonality of national rhetoric and approach in the post-Ottoman period.192

There was an arguable basis for the League’s nation-based settlement in the Ottoman millet

system.193 Throughout the late Ottoman period, a new discourse of “rational and supposedly

scientific race-thinking” had entered the public domain.194 An ailing empire itself, the Sublime

Porte, through this new scientific discourse on race, established a modern concept of citizenship

–Ottoman Citizenship – to which the non-Turkish races and ethnicities of the Empire would have

to be gently introduced.195 Interestingly, this race-speak was later reflected in the League’s

negotiations sessions. However, as mentioned, the Turkish representatives consistently argued

for “racial choice”. In contrast, the League consistently argued for the necessity of racial

authenticity, itself adopting a very scientific position on race – race was inherent, singular and

unchanging.

190 Khoury, Syria and the French Mandate, supra note 38 at 504. 191 Watenpaugh, “Creating Phantoms”, supra note 85 at 369, 373. In the meantime, al-Arsuzi and other nationalists were training the local population in using the language of ethnicity to put forward nationalist claims of self-determination. 192 Ibid. 193 See the Call for Proposals for an academic conference which asks: “If former Ottoman territories are today rife with intercommunal violence, to what extent might this be a result of their Ottoman heritage which, through the millet system, institutionalized division and provided for communal autonomy?” referenced in Sarah Shields, “From Millet to Nation”, supra note 122 at 1. For a reference on the Ottoman millet system, see, Braude and Lewis, eds. Christians and Jews in the Ottoman, supra note 16. 194 Ibid. 195 Ussama Makdisi, “Rethinking Ottoman Imperialism: Modernity, Violence and the Cultural Logic of Ottoman Reform” in Jens Hanssen, Thomas Philipp & Stefan Weber, eds. The Empire in the City: Arab Provincial Capitals in the Late Ottoman Empire (Würzburg: Orient-Institut; Ergon Verlag in Kommission, 2002) 29 at 46.

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Despite a rejection of the League’s intervention by many nationalists, the doctrinaires on both

sides, in fact, used the logic of Article 22 of the League of Nations Covenant by connecting

between their call for the national self-determination of the people of Alexandretta and their

degree of civilization.196 Thus, instead of using the language of international law for progressive

ends, they simply reinforced the racist logic behind the gradation of civilization. In that sense,

the people’s “agency” here was only a mirror of the structural constraints imposed by the

international legal system.197 These constraints also reflected international law’s manipulation of

“class” in its management of the dispute. The League needed to create alliances with the ruling

class, the commercial class and property owners as part of its nation-building project.

Missing “Class” 5The League’s self-determination project in Alexandretta over-determined the ethnic dimensions

of the population, thereby neglecting “class” as a subject of concern in international law. That

Sunni Turks were considered to be the landowners, the Armenians and Arab Christians were

considered the middle class, the Alawites and Sunni Arabs were the working class of agricultural

and domestic labourers. But this correspondence between ethnicity and class was not factored

into any of the League’s mechanisms and was entirely absent from the Geneva archives on

Alexandretta. Moreover, the active creation of a new Armenian middle class by both the

Mandate and the League was absent from any discussion over the (ethnic) composition of the

Sanjak. The various manifestations of resistance, countrywide protests and labour strikes were

also irrelevant to the League of Nations’ records, which included reports, resolutions, letters and

Council discussions. These events could be traced only in the newspaper clippings collection of

the archive.

The neglect of “class” flowed from the legal structures instituted by the League. The

Fundamental Law, the national confessional program and the plebiscite became constitutive of

196 Ibid at 371. 197 On the agency of jurists of the semi-periphery, compare Arnulf Becker Lorca, “Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation” (2010) 51:2 Harv. Int’l L. J. 475, and Umut Özsu, “Agency, Universality, and the Politics of International Legal History” (2010) 51:2 Harv. Int’l L. J Online, available at: http://www.harvardilj.org/2010/10/online_52_ozsu/

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the new Syrian state emerging from the Mandate.198 These structures were blind to the existing

class disparities in the Sanjak and the ethnic division of labour. They were also constitutive of a

new kind of ethno-national politics in the region. In addition, the League depended on strong

alliances with the national, that is, Turkish and Syrian elites: the commercial class and property

owners.

Despite the existence of the millet system in the late Ottoman period, Alexandrettans of the

multilingual and multiethnic Ottoman Empire had never been forced to claim membership in a

single “authentic” community. The ethno-national system of the Fundamental Law

institutionalized singular identities. Like a “hall of mirrors”, international law was committed to

a communal notion of democratic representation, but determined those communities in ways that

created as well as reflected them. Whereas the League commissioners took the inhabitants’

declarations or “confessions” of identity as “authentic”, they were a distorted reflection of

existing identities, distorted in the mirror of ethnicity made in Geneva that required the

inhabitants to choose a singular when they did not want to adopt an ethnicity in the first place.

198 The constitutional life of Syria and Lebanon after the end of the mandate demonstrates the endurance of these legal structures. The 1943 Lebanese constitution clearly demarcated the different ethnicities and religions. The category of “minority” was granted to Muslims and non-Maronite Christians, rather than to the top 4% of wage earners, for instance. That is, the post-colonial constitutional life was already defined by ethnicity. See Sarah Shields, “From Millet to Nation”, supra note at 11.

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Chapter 3 The League of Nations in Mosul 1924-26: Nationalism, Oil

Concessions and the Creation of a New Iraqi State

“Along the high-road which crosses the fertile plains we meet with a medley of populations.

Races make their appearance, coalesce, are subjected to conditions of symbiosis and change their

manner of life,”1 reported a commission of inquiry sent by the Council of the League of Nations

in 1926 to resolve the dispute between Turkey and the British Mandate of Iraq over the province

of Mosul (located in present-day northern Iraq). These races included Turks, Arabs, Yezidis,

Christians, Jews, Sarli, Sharkas and predominantly Kurds. Races “appeared”, “coalesced” and

intermixed, disrupting the logic of ethnic self-determination applied by the League in the

landmark self-determination cases of the inter-war period: the Aaland Islands and Upper Silesia.2

The Kurds had an “obscure origin,” “but, whatever they may have been at one time, they are now

aryanized. However small the infiltration of Aryan blood may have been, it has been strong

enough. …There have been many later influences and intermarriages with Arabs, Turks and

other races; but the original stock seems always to have been predominant, for it has kept its

vigour and is still expanding.”3 Using the standard of civilization discourse, the commissioners

also offered comments on their virtues and physical characteristics, noting that “[l]ike the Kurds,

[the Sarli and Sharkas] are robust, muscular, tall and of dark complexion and posses aquiline

noses, black hair and dark brown eyes. They are dishonest, violent and treacherous.”4 The

Yezidis, on the other hand, were a “curious people,” commonly known as devil worshippers

have a “doubtful origin” – “more doubtful even than that of the Kurds.”5

1 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, C. 400 M. 147. 1925. VII, League of Nations Archives at 17, 55. 2 P. M. Brown, “The Aaland Islands Questions” (1921) 15:2 AJIL 268; David Hunter Miller, Opinion on the Question of Upper Silesia: Written at the Request of the Government of Germany and Transmitted by the German Government to the League of Nations, to the Governments of Great Britain, France and Italy and to the Vatican (1921). 3 Question of the Frontier Between Turkey and Iraq, Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 43, 44. 4 Ibid. at 51. 5 Ibid. at 49.

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This racial mapping of the Wilayet (province) of Mosul was central to the League’s intervention

in the province. In fact, this language of the League of Nations, reminiscent of the language of

eugenics, came to define a fundamental aspect of the dispute – the self-determination of the

people of Mosul. The League’s historical sources ranged from British encyclopaedias to “renown

travellers of the Orient” and it thereby created a new discourse of racial purity and authenticity.6

By invoking history, “racial origin” legitimated the differentiation of residents along racial lines.

The League-appointed Commission of Inquiry described physical features, temperaments, myths

and stories as racial characteristics. While the language of nation-building had not yet been

comprehensively used in Mosul, the uses of “race”, “origins” “purity” were certainly in that vein.

The dispute between Turkey and the British mandate of Iraq over Mosul emerged in 1925, after

the parties were unable to reach an agreement over the province, and it was tabled in a provision

of the Lausanne Treaty of 1923. The League was both wrestling with the problem of a “medley

of populations,” as was the case in Europe; and applying assumptions about the civilized and the

uncivilized, as in the system of A, B and C Mandates. While those two familiar poles are helpful

in studying the Mosul dispute, this chapter also highlights the economics of the League’s nation-

building project as realized through the various legal mechanisms used to manage the dispute. As

regards ethnic self-determination, the League created the fiction of Iraqi, as opposed to Kurdish,

self-determination. The League-appointed Commission of Inquiry also attempted to mobilize

democratic self-determination in the direction of a specifically Iraqi national project. Through

pitting the two self-determination stories – the Iraqi and the Kurdish – against each other, the

chapter makes visible the underlying struggle over capital in the oil-rich Mosul. It relies on the

findings of the report of the League-appointed Commission of Inquiry, the travaux préparatoires

of the relevant provisions of the Lausanne Treaty and the primary text of the negotiations’

sessions at the Council of the League of Nations. The Iraqi project, supported and privileged by

the British Mandate, became the principal project of the League. In focusing on the economics of

the League’s Iraqi nation-building project, this chapter illuminates the relationship between

national self-determination, imperialism and capital accumulation. I argue that the League’s

intervention in Mosul privileged the national project that would be lucrative for the core states,

specifically the British Empire through its control over the oil concessions. The case also

6 Ibid. at 43, 49.

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demonstrates that like the situation in Alexandretta, the League’s categories of ethnicity

corresponded to particular social classes. As outlined in Chapter 1, this chapter also argues that

only by applying an intersectional method to the Mosul dispute can we comprehensively assess

the legal outcomes of the League’s intervention in the province.

In what follows, I first give a brief account of the treaties relevant to the Mosul dispute. Second, I

discuss the intersection of “class” and “nation” in Iraq in the League’s standard of civilization

discourse, showing, as TWAIL scholars have consistently argued, that international law and its

institutions are historically closely linked with imperialism. This section introduces class into this

civilizational discourse, demonstrating that national categories were also class-based categories.

Third, I focus on the Commission of Inquiry’s assessment of the ethno-racial make-up of Mosul.

This section outlines the tediously detailed study by the Commission on the “true origins” of the

different ethnicities and races in the province. Fourth, I focus on the relationship between

imperial capital and the discourse of economic prosperity adopted by the British government in

the deliberations of the Council of the League of Nations. Fifth, I analyze how self-determination

is relocated (to a self-consciously Iraqi national self-determination) by the determinants of class,

capital and international legal preferences. Finally, I conclude with the outcomes of the League’s

Commission of Inquiry, focusing on questions pertaining to colonial control, League of Nations’

supervision and minority protection, and showing how the League’s scheme made “minorities”

out of majorities.

The Treaties and their Politics: from Sykes-Picot to 1Lausanne

A number of treaties and agreements were reached in the years leading up to the 1926 Mosul

dispute between Turkey and the British Mandate of Iraq. Negotiations surrounding these legal

instruments, clearly positioned as instruments of colonial control over the Near East, became

sites of contestation between the different imperial powers and local elites over capital and

resources. Significantly, these legal instruments increasingly took the shape of an Iraqi nation-

building project, orchestrated initially by the main colonial powers in the region, Britain and

France.

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1.1 The Clandestine Sykes-Picot Agreement 1916

When Mark Sykes, the 26-year old English Parliamentary Secretary and honorary attaché to the

British Embassy in Constantinople, arrived in Mosul in 1905, he found Arabs “with the minds of

mudlarks and the appearance of philosophers.”7 In Mosul, there was “the wheezy plaints of

lepers and hideously maimed beggars, bazaars that [were] reeking and dark at mid-day, strings of

supercilious, bubbling, split-lipped camels. These are the things of Mosul, and of all lands where

Arabs are a majority.”8 Almost a decade later, in the famous 1916 agreement between England

and France over the Near East, known as the Sykes-Picot Agreement after Sykes and his French

counterpart Georges Picot, Sykes agreed to give Mosul to France; in fact, it was his idea.9 For

him, Mosul was “that sorcerous sink of horror where lingered that dead Paganism which the

Cross and Mohammed have slain but have as yet been unable to annihilate.”10 British policy

since the turn of the century, however, had been to establish strong political influence in Mosul

in conjunction with its broader policy of fostering and reviving “Arab civilization” and

promoting “Arab unity with a view of preparing them for ultimate independence.”11

The Sykes-Picot agreement formed the basis of the post-war settlement between Britain and

France with regard to the territories of the former Ottoman Empire.12 The Near East was to be

divided between Britain and France, with an international zone in Palestine. Britain was to annex

Basrah and Baghdad in Mesopotamia and France was to annex Syria, Southern Anatolia and

Mosul.13 Britain and France also agreed that an independent Arab state or federation was to be

7 Shane Leslie, Mark Sykes: His Life and Letters (London: Cassell and Company Ltd., 1923) at 94. 8 Ibid. 9 Ibid. at 249. 10 Ibid. at 108. 11 Ibid. at 274. 12 Elie Kedourie, In the Anglo-Arab Labyrinth: the MacMahon-Husayn Correspondence and its Interpretations (1914-1939) (New York: Cambridge University Press, 2010) at 159. 13 Ibid. at 24. Sykes explained how Mosul was allotted to the French-administered territories: “nowhere must Britain run the risk of sharing an Asian frontier with Russia.” French-ruled Mosul was to act as a buffer between the British zone and the Russian Caucasus. This allocation was only agreed upon after France had pledged to respect the existing economic rights of British nationals in all ex-Ottoman territories that fell under the French spheres of influence. Habibollah Atarodi, Great Powers, Oil and the Kurds in Mosul: (Southern Kurdistan/Northern Iraq), 1910-1925 (Lanham, MD: University Press of America, 2003) at 44.

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created within the British and French spheres of influence.14 The Sykes-Picot agreement was

resented by the indigenous populations affected; it was also in direct contradiction with the

earlier Hussein-MacMahon correspondence (1915-1916), which was an agreement between the

Sharif of Mecca, Hussein Bin Ali and Sir Henry MacMahon, the British High Commissioner in

Egypt, that Britain would help stage an Arab revolt against the Ottoman Empire in return for

Arab independence.15

1.2 Lausanne 1923: Mosul’s Unsettled Status

Whereas other territorial issues were thus out of the way in the lead up to the Lausanne

conference (1922-23),16 sovereignty over Mosul continued to be a stumbling block in finalizing a

peace treaty between the Allies and Turkey.17 In fact, it has been argued that American agents

(including public officials and corporate leaders) provided covert moral support to the Turks to

prevent a settlement of the Mosul boundary at Lausanne. The United States Special Mission to

Lausanne even urged Turkey’s representative, İsmet Pasha to remain firm before British

demands to settle the question of Mosul and to incorporate a provision that would confirm

Britain’s pre-war claim to the oil fields in Mosul through the Turkish Petroleum Company.18

At Lausanne, the British position on the creation of an independent Kurdish state, promised in

the Treaty of Sèvres, changed. Mosul would have constituted a large section of the Kurdish state.

Previously the British government was still using the Kurdish question to settle the preliminary

disputes over the Ottoman territories, but at Lausanne, the creation of a Kurdish state posed a

14 Ibid. at 24. 15 See Kedourie, In the Anglo-Arab Labyrinth, supra note 12 at 159. 16 After the signature of the treaty, particularly after the San Remo Agreement, which confirmed the British mandate over Iraq, Arab nationalism sparked massive protests in Iraq leading to the denunciation of the resented term “Mandate” to be replaced by a Treaty of Alliance between Britain and King Faisal (1922). The change was merely a change of name; it had very limited substantive implications. Iraq was to become an independent but protected state. Helmut Mejcher, “Iraq’s External Relations: 1921-26” (1977) 13:3 Middle East. Stud. 340. 17 Toby Dodge, Inventing Iraq: the Failure of Nation-Building and a History Denied (New York: Colombia University Press, 2003) at 31. 18 Before the war, Britain had secured its share of oil exploitation in Mosul. However, the outbreak of the war brought the project to a halt before being ratified by the Ottoman Empire. As for the US, its support for Turkey was rewarded by granting Chester and his Ottoman-American Company concessions for the building of railways and exploitation of mines. Atarodi, supra note 13 at 118, 119.

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direct threat to the new Iraq as envisioned by the new post-war state system in the region. The

congress at Lausanne was therefore the first step to give legal form to the Iraqi nation-building

project that was later taken up by the League’s intervention.

At Lausanne, the Turkish representative, İsmet Pasha İnönü, argued for Turkey’s entitlement to

the entire Wilayet of Mosul down to Jabal Hamrin in northern Iraq as a claim to territory as well

as self-determination.19 He argued first “illegal occupation”: Britain had illegally occupied

Mosul after the Mudros Armistice, which stipulated that the status quo should be maintained

until an agreement was to be reached. Second, he argued “race”: Arabs were a separate race and

were only a small minority, while the Turks and the Kurds were not racially distinguishable (as

race was defined in the 1920 Turkish National Pact passed by the Turkish national assembly).

Third, he claimed democratic “self-determination”: the will of the people of Mosul was to join

with Turkey. Therefore, the self-determination argument thus took democratic as well as ethnic

form. Finally, and most significantly, he argued Turkey’s entitlement to Mosul in terms of the

“economy”. Most of the Mosul area conducted the majority of its trade with Anatolia (Asia

Minor, that is, the majority of the Turkish Republic), not Iraq. This last argument departed from

the traditional self-determination and minority protection discourse of the League of Nations in

the interwar period. It signalled a shift in the domain of international legal argument.

The British representative, Lord Curzon, rejected all of these arguments. First, he argued that the

British government had tutelage over Iraq under the mandate treaties. Second, the majority of the

inhabitants were Kurds of Indo-European origins who were essentially different from Ural-

Atlantic Turks. Third, the self-determination of the Kurds would be realized through their union

with Iraq and not with Turkey, as demonstrated by the nineteenth century and the immediate pre-

War and post-War Kurdish revolts against Turkey. Finally, Lord Curzon argued that most of the

trade of the wilayet was with the rest of Mesopotamia, not Anatolia, an argument that recurred in

internal British deliberations, as well as at the Council of the League of Nations.20

19 İsmet Pasha İnönü was the Turkish delegate representing the new national government after the Grand National Assembly at Ankara had abolished the Sultanate on November 1, 1922, and the Ottoman government ceased to exist. See the preamble of the Treaty of Lausanne. Treaty of Peace with Turkey Signed at Lausanne, The British Empire, France, Italy, Japan, Greece, Romania and the Serb-Croat-Slovene State, and Turkey, 24 July 1923. 20 Othman Ali, “The Kurds and the Lausanne Peace Negotiations, 1922-23” (1997) 33:2 Middle East. Stud. 521 at 521, 522.

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The parties eventually reached a deadlock at the negotiations table. For the time being, they

decided to exclude the question of Mosul from the peace negotiations, with the question of

control over the oil fields hanging over the deliberations. In keeping with arrangements made

elsewhere (e.g. the Saar Territory),21 Article 3 (2) of the Treaty of Lausanne stated that:

The frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months. In the event of no agreement being reached between the two Governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations. The Turkish and British Governments reciprocally, undertake that, pending the decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories, of which the final fate will depend upon that decision.22

The future of Mosul was thus to be postponed until agreement was reached between Turkey and

Britain or, alternatively, the dispute was referred to the Council of the League of Nations.

Lord Curzon, refusing to set up a plebiscite similar to the one in Upper Silesia, for example,

threatened to exercise Britain’s rights under Article 11 of the Covenant of the League to bring

the matter before the Council. This debate on the appropriateness of a plebiscite in the Middle

East region would later constitute a large part of the Turkish arguments at the negotiations

sessions at the Council of the League.

Nation-building in Iraq and its Intersection with “Class” 2in the Civilizational Discourse

Speaking at a 1924 conference in Britain, the Political Secretary to the High Commissioner of

the civil administration in Iraq, Sir Bernard Henry Bourdillon, described British foreign policy in

Iraq after Lausanne:

Those of us who have been working out there for the past few years have often felt that the British public, even the more intelligent sections of it, regard Iraq in the light of a rather unattractive war baby of highly suspicious parentage whom they have been

21 Sarah Wambaugh, The Saar Plebiscite (Cambridge: Harvard University Press, 1971) at 42-58. 22 The Question of the Frontier Between Turkey and Iraq, Article 3 (2) of the Treaty of Lausanne (Oct. 1924) 5 LNOJ 1318 at 1318.

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compelled from a sense of duty to adopt, but for whom they have no feeling of parental affection.23

Bourdillon emphasized that “quite apart from certain broad principles of self-determination

which have won recognition as the result of the war, [British] policy in Iraq [was] in direct

pursuance of certain definite pledges which [Britain] entered into in order to gain certain definite

ends.”24 He argued that Arab nationalism “pre-existed” the British occupation of Iraq and that

this was instrumental in gaining British support against the Turkish threat.25 The defining

characteristics of this nationalism were “community of language and dislike of the Turk.”26 The

British, he explained, used Arab national consciousness in their struggle against Turkey and

made certain promises to strengthen that feeling amongst the indigenous population. These

promises included the inclusion of Mosul within the borders of Iraq. Therefore, the question of

Mosul was incorporated into the overall Iraqi nation-building project.

Two months before the expiry of the date provided by the Treaty of Lausanne, Fethi Bey, the

Turkish representative to the League of Nations, challenged Britain’s standing to bring a claim to

Mosul on behalf of Iraq. He presented a memorandum claiming that Mosul was juridically part

of Turkey, despite the fact that it was under provisional British administration. When the nine-

month period required by the Treaty expired and no settlement was reached, Britain requested

the advice of the League Council on the Mosul dispute.27 Initially, the Turkish government

attempted to stall the process by bringing procedural challenges. İsmet Pasha, the Turkish

representative to the League of Nations, sent a telegram to the League’s Secretary General a few

days after the British submission, claiming that the Turkish government had not been officially

23 B. H. Bourdillon, “The Political Situation in Iraq” (1924) 3:6 J. Brit Inst. Int’l Aff. 273 at 273. See also, Commission Seventh Meeting, “Iraq: Examination of the Annual Reports for 1923-24 and 1925: General Statement by the Accredited Representative” (8 November 1926) League of Nations Archives at 45. 24 Bourdillon, “The Political Situation in Iraq”, supra note 23 at 276. 25 Before Iraq became a Class A Mandate in 1920, and only four days after the end of war with Turkey on November 3, 1918, Britain militarily occupied the town of Mosul, extending the British occupation to the entire Wilayet of Mosul. Peter Sluglett, Britain in Iraq: Contriving King and Country (New York: Columbia University Press, 2007) at 77. 26 Bourdillon, “The Political Situation in Iraq”, supra note 23 at 275. 27 Quincy Wright, “The Mosul Dispute” (1926) 20:3 AJIL 453 at 453.

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informed in writing of the entry into force of the Treaty of Lausanne, nor had it received the

minutes as mentioned in Article 143 of the treaty.28

After settling the process, the League was able to officially manage the dispute and the

negotiations commenced in Geneva. Turkey made another procedural attempt to prevent the

League’s involvement in the dispute by challenging the binding force of the decision to be

reached by the Council under Article 3 (2) of the Treaty of Lausanne. The British Government

argued that the article empowered the Council to assume the role of arbitrator in the event of a

dispute and that its decision was to be binding on both parties. The Turkish Government argued

that the Council could merely provide a recommendation as stipulated in the Covenant. The

Permanent Court of International Justice (PCIJ) found that the Council had the capacity to make

a binding decision on the matter and that the usual unanimity rule should apply, excluding the

parties concerned.29 Thus despite all the Turkish legal manoeuvres, the Council of the League

and the PCIJ both mandated the Council to act as an arbiter, which in turn was able to create four

legal bodies to manage the Mosul dispute in a span of only one year.30 Arguably, the Turkish

Government’s larger strategy was to prevent the Council from forming a commission of inquiry,

as opposed to a plebiscite, to determine the future of Mosul. It was part of Turkey’s rejection of

the double standards and eurocentrism of the League. Using international law to hold the League

to its own standards, Turkey argued that while the League had previously authorized a number of

28 Communication to the Council and to the Turkish Government: Frontier Between Turkey and Irak, August 26, 1924, C. 423. 1924, Telegram from the Turkish Government to the Secretary-General of the League of Nations, Geneva, Angora, dated August 25, 1924, League of Nations Archives at 2. 29 See Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier Between Iraq and Turkey) (21 November 1925) Advisory Opinion No. 12, PCIJ Reports. The questions before the Court were “I) What is the character of the decision to be taken by the Council in virtue of Article 3, paragraph 2, of the Treaty of Lausanne-is it an arbitral award, a recommendation or a simple mediation? II) Must the decision be unanimous or may it be taken by a majority? May the representatives of the interested Parties take part in the vote?” For a legal analysis of the procedure and the judgment on the question of Mosul, see generally G. Schwarzenberger, “The Nemo Judex in Sua Causa Maxim in International Judicial Practice” (1972) 1:4 Anglo-Am. L. Rev. 482, at 487-492; Ole Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge: Cambridge University Press, 2005) at 230-241. 30 This was symptomatic of the League’s choice of procedure to settle disputes during the inter-war period. For example, the details of the Saar Plebiscite involved an appointed four-member commission, which then appointed a special committee, which provided another procedure for the plebiscite itself to be conducted after fifteen years of the League’s administration of the territory by another five-member commission. See generally Sarah Wambaugh, The Saar Plebiscite, supra note 21; see also Sarah Wambaugh, Plebiscites Since the World War: With a Collection of Official Documents, Vol. II—Documents (Washington: Carnegie Endowment for International Peace, 1933) at 491.

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plebiscites in Europe to settle various self-determination disputes, it denied the same democratic

self-determination to the people in the “Near East”.

2.1 Plebiscite in the Semi-periphery?

Before the Council of the League, Turkey insisted on a plebiscite on Mosul’s future. The Turkish

National Pact of 1920 made Mosul an integral part of Turkey. It asserted that the destiny of areas

occupied by British enemy forces should be determined by “the votes which shall be freely given

by the inhabitants… united in religion, in race and in aim… [and] form a whole which does not

admit of division for any reason in truth or in ordinance.”31 Turkey was thus invoking a national

legal instrument as a legitimate argument in international law, perhaps a strategy to place itself

on equal legal footing with Britain.

Fethi Bey, the Turkish representative, argued that while a commission of inquiry could establish

certain facts, it could not determine the wishes of the population with the same incontestable

authority as a plebiscite.32 The Commission’s limited ability to consult would threaten the “ends

of justice” of the entire process. In fact, when hardly two years had passed since the Greek-

Turkish population exchange, Fethi Bey declared before the Council of the League that “no

population can be transferred from one State to another against its will,”33 echoing President

Wilson’s famous Fourteen Points.34 Significant for Fethi Bey was the fact that “Eastern people”

should be treated in the same way as Europeans in Upper Silesia, the Saar Basin, parts of East

31 J. De v. Loder, The Truth About Mesopotamia, Palestine & Syria (London: George Allen & Unwin Ltd., 1923) at 146. Lorder was working for the League of Nations Union and, according to the preface of this book, he wrote it to apply the ideas of the League of Nations to the territories of the Former Ottoman Empire. He saw no strategic advantage to the presence of Britain in Iraq. However, he noted that it would be a mistake for Britain to suddenly leave Iraq since this would leave it vulnerable to Turkish aspirations in the region. The goal was therefore to deter the rise of a strong Turkey that could be politically commensurate with the old Caliphate. 32 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 14. 33 Ibid. 34 Woodrow Wilson, Woodrow-Wilson: Essential Writings and Speeches of the Scholar-president, ed. Mario R. Dinunzio (New York: New York University Press, 2006) at 403.

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Prussia, the Schleswig and Klagenfurt regions and elsewhere where plebiscites allowed the

population to decide their future.35

The British Government remained vehemently opposed to a plebiscite in Mosul. First, by

categorizing the issue as a boundary determination rather than a territorial one, Britain argued

that the definition of the frontier was not a matter “that lends itself to a decision by plebiscite.”36

This was an attempt to (momentarily) escape the application of self-determination and the need

to ascertain the will of the people. Second, the population inhabiting the vicinity of the Turco-

Iraqi frontier consisted mainly of “uneducated tribesmen who can hardly be regarded as

competent to deal with the complicated issue involved so often in boundary settlement.”37 As I

will argue below, the civilizational discourse used to distinguish between different ethnicities in

the province overlapped with class-based distinctions. This became salient as well when the

nation-building project was inherited by the League’s Commission of Inquiry.

The British arguments ended with one of the main themes of interwar international relations: the

overriding importance of the maintenance of peace. Holding a plebiscite around the frontier

would cause a disturbance to the peace.38 Finally, Britain claimed that if popular consultation

were to be the approach adopted, plebiscites (referenda) had been held in 1919 and in 1921, and

thus the “wishes of half the population are well known, and that, as regards this half, a plebiscite

is absolutely useless.”39 As for the other half of the population, which was Kurdish, Britain again

invoked the civilizational discourse to assert that “the great majority of whom are members of

35 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 14. 36 “The Question of the Frontier Between Turkey and Iraq, Article 3 (3) of the Treaty of Lausanne”, supra note 22 at 1318. 37 Ibid. 38 This is a recurring theme, most notably in the Aaland Islands case. See “Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions” LNOJ, Special Supplement No. 3, Oct. 1920. 39 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 16.

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primitive tribes, incapable of a coherent expression of their views.”40 Therefore, the Council,

they argued, should appoint a commission to study the documents that had been already prepared

and any additional evidence that it collected from its investigation.41

The Council decided that the Commission of Inquiry to be appointed should explore the

possibilities of holding a plebiscite.42 When the Commission later visited Mosul, it attempted to

carry out what it called “experimental plebiscites” in selected places, asking for guarantees from

the British High Commissioner in Baghdad as to the freedom and impartiality of these

plebiscites.43 The Commission eventually deemed these experiments “useless” and became

convinced of the “full force of the British assertions as to the insuperable practical difficulties of

holding a plebiscite.”44 A plebiscite was therefore deemed incompatible with the circumstances

in Mosul, since the level of civilization would hinder its smooth functioning. Additionally, the

poor education and the lower social classes of the inhabitants would impact the success of a

plebiscite. Determining the future of the province would depend solely on the recommendations

of the European members of the Commission of Inquiry.

2.2 Three Europeans in a Commission of Inquiry: Self-Determination of the “Backward” and the “Chaotic”

After agreement between Fethi Bey and Lord Parmoor, the Council passed a resolution to set up

an international commission of inquiry to investigate the status quo at the borders, especially

after allegations of military activities on both sides.45 In an extraordinary session convened in

40 “The Question of the Frontier Between Turkey and Iraq, Article 3 (3) of the Treaty of Lausanne”, supra note 22 at 1318. Again this same rhetoric was used in other interwar plebiscites. See Wambaugh, Plebiscites since the World War: With a Collection of Official Documents, supra note 30. 41 “The Question of the Frontier Between Turkey and Iraq, Article 3 (3) of the Treaty of Lausanne”, supra note 22 at 1318. 42 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 18. 43 Ibid. 44 Ibid. 45 From the outset, a dispute arose as to the definition of the status quo: the British claimed it was the one of 24 July 1923, marking the conclusion of the Treaty of Lausanne; the Turks claimed that it was 30 September 1924. Question of the Frontier between Turkey and Iraq; Report Submitted to the Council by the Commission Instituted by the Council Resolution of September 30, 1924, supra note 1. See also Atarodi, supra note 13 at 191.

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Brussels, the Council proposed that the “status-quo” line be a line that was initially drawn by Dr.

Hjalmar Banting, the Swedish Premier, later known as the “Brussels Line”. The Brussels line

was to be the provisional frontier between Turkey and Iraq.46

The next step was the creation of the Commission. The Council appointed three members: Carl

Einar Thure af Wirsen, the Swedish Minister to Rumania as chairman; Paul Téléki, a former

Hungarian Premier and a committed anti-Semite who had allegedly acted as a mediator between

the Turkish Petroleum Company (TPC) and the Iraqi government shortly before the oil

concessions were granted to the TPC47; and Albert Paulis, a Belgian Colonel, colonial

entrepreneur and renowned expert in the colonization of Congo.48 The Commission conducted a

number of meetings with officials from the Turkish and British governments during its visits to

London and Constantinople. The Commission eventually reached Iraq, first visiting Baghdad,

then Mosul. It conducted a series of interviews from late January to March 1925 despite the state

of unrest inspired by Sheikh Mahmoud, the Kurdish leader. Under close British oversight,

members of the commission had an extensive “tour” of the wilayet of Mosul, roaming the

bazaars, interviewing some of the inhabitants and visiting principal localities.49

The commissioners were guests of the British High Commissioner, Sir Henry Dobbs and they

stayed in the residence along with the Turkish assessor, whereas the Turkish experts were housed

in another part of the city, allegedly in an “entrenched camp” of military barracks surrounded

with barbed wire.50 The Commission was welcomed and its presence blessed by King Feisal. In

his speech, King Feisal insisted that Iraq was a center of Arab civilization. The Hashemite King

invoked the history of the Arab nationalist movement. The Arab nationalists, he explained, “had

not hesitated to avail themselves of the opportunity offered by the world-war to join the Allies

46 Ibid. 47 Antoine Buyse & Michael Hamilton, Transitional Jurisprudence and the ECHR: Justice, Politics and Rights (New York: Cambridge University Press, 2011) at 139. See also, Atarodi, supra note 13 at 193. 48 Question of the Frontier between Turkey and Irak (1926) League of Nations Archives at 168. 49 Cecil J. Edmonds, Kurds, Turks, and Arabs: Politics, Travel, Research in Northeastern Iraq, 1919-1925 (London: Oxford University Press, 1957) at 411. 50 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 6, 7.

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and expel the usurpers.”51 He reminded the League commissioners that the British government

had promised him that it would allow the establishment of a national government in Iraq, which

at the time had been in existence for four years. The progress reached by the Iraqi government in

those four years, he argued, allowed the British government to transform the mandate into a

treaty of alliance.52 But this treaty of alliance was essentially a tactic used to appease Iraqi

resentment of the idea of the mandate.53 The intention was to give the appearance of a regular

diplomatic relationship between two equal sovereign states, despite the fact that Britain was

occupying Iraq and held the League of Nations’ mandate for Mesopotamia.54

After the treaty of alliance was signed, anti-treaty protests and riots erupted in the southern Shi’i

cities and the mid-Euphrates region.55 Shi’is were particularly concerned that the institutional

structures needed for the ratification of the treaty – including linking the country’s constitutional

apparatus with the terms of the treaty – would consolidate the command of a state over which

they had no power.56 Effectively, the terms of the treaty embodied the terms of the mandate. The

Organic Law and the Electoral Law granted the King the power of Irada (or royal will), which

authorized him to prorogue and dissolve the parliament, to select the prime minister and to

appoint the Cabinet with the recommendation of the premier.57 These changes in the foundations

of the legal system caused huge resentment against the League of Nations mandate system and

were reflected in large demonstrations, anti-mandate newspaper articles and even poetry. The

famous Iraqi poet, Ma’ruf al-Rusafi wrote his popular poem against these changes to the legal

system and the Mandate treaty: A flag, a constitution, a national assembly, Each deviates from its true meaning. Words that we can only articulate, But to which no meaning we can relate. Whoever reads the constitution would know,

51 Ibid. at 6. 52 Ibid. 53 Charles Tripp, A History of Iraq (Cambridge: Cambridge University Press, 2000) at 52. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid. at 57, 58.

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That on the Mandate treaty it is based.58

The progress to which King Feisal referred clearly had no traction among the indigenous

population. In fact, such progress was seen as another measure of colonial control through

international treaties and domestic corresponding legislative changes. On this view, when King

Feisal reminded the commissioners of the progress negotiated by the ratification of the treaty of

alliance and the promise by the British representative at the Council of the League of Nations

that Iraq would soon be in a position to become a self-governing state and a member of the

League of Nations, this was merely the language of Geneva diplomacy.59

King Feisal, undoubtedly aligned with the British government, was negotiating his rule in Iraq

and the potential for a wider scope of powers. Using the rhetoric of political stability and

economic development, he explained that Iraq’s efforts would focus on the development of its

natural resources and agriculture, but more importantly on the exploitation of the Iraqi oil fields.

He was particularly anxious about losing a major bargaining chip, namely, the contracts of oil

concessions that were about to be concluded with British and American companies.60

During the rest of its stay in Baghdad, the Commission was invited by the Iraqi Government to

visit a number of ministries, the Military School, hospitals, educational institutions and

agricultural schools.61 They also received various delegations from the Iraqi government. As part

of its inquiry, the Commission toured the markets, granaries and wood depots in the commercial

centres of the town.62 This was, as they claimed, to “obtain an insight” into the trade relations

58 Ma’rouf al-Ruṣāfī, “Of Government and Politics I Know” in Ma’rouf al-Ruṣāfī, Dīwān al-Ruṣāfī (Al-Qāhirah: Dār al-Fikr al-‘Arabī, 2007) (translation is mine). 59 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 6. 60 Ibid. Notably, in other interwar settlements, control over natural resources was accorded to the colonial power in the final agreement. For example, Chapter 1of the Annex to the Saar plebiscite accorded France rights of ownership over the mines and coal deposits. This also included all plants, equipment, means of communication, schools, hospitals, and dwellings of all those employed in the mines (managers, employees, and workmen). See Wambaugh, The Saar Plebiscite, supra note 21 at 58. 61 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 8. 62 Ibid.

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between Baghdad and other cities in the region and in the North.63 The Commission specifically

sought to obtain “direct evidence” of the economic interdependence of the wilayets of Mosul and

Baghdad.64 For example, it carefully studied the customs statistics, seeking out pre-war consular

reports in its attempt to gather information on the economic situation of the country.65

The Commission then proceeded to Mosul, arriving on the afternoon of January 27 1925 and

took up residence at King Feisal’s large house near the town.66 The three commissioners divided

up the province into three sections. De Wirsen was in Mosul to interview residents in Sunjar, Tal

Afar, Qaraqosh and Akra; in the villages surrounding Mosul city; and among members of the

major tribes along the Tigris.67 Commissioner Téléki interviewed people in the area surrounding

Erbil.68 Commissioner Paulis was assigned the area of Kirkuk and the surrounding tribes. The

Commissioners each had an assistant and were accompanied by both a British/Iraqi and a

Turkish delegate.69 Commissioner Téléki described the scene of their arrival as follows:

I went for a walk in the town ... As I was leaving our house, General Jevad Pasha, in uniform, offered to accompany me. I accepted his offer the more readily as I was curious to see what impression his uniform might produce on the population. Hardly had we come into the street – the police not having yet followed us – when about thirty persons (who I supposed were Arabs) surrounded the Pasha and kissed his hands amid cries of “Long Live Turkey!” The crowd following us grew until it must have consisted of about 200 individuals, and the shouting increased. The crowd seemed to consist of various elements. Some of these present were very respectable; others, again, seemed to be beggars. …The police officers renewed their efforts to disperse the crowd, which seemed to obey their orders. It was then that we noticed that behind us two policemen were using their sticks, and one of them attacked a middle-aged man who had taken refuge in a shop, belabouring him violently under our eyes. I felt bound to intervene. I called an officer and said to him: “I forbid you to strike people in the presence of a member of the Commission of the League of Nations.”70

63 Ibid. 64 Ibid. 65 Ibid. 66 Ibid. 67 Sarah Shields, “Mosul, the Ottoman Legacy and the League of Nations” (2009) 3:2 Int’l J. Cont. Iraqi Stud. 2 at 225. 68 Ibid. 69 Ibid. 70 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 8.

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Commissioner Téléki’s account portrays the chaotic and messy atmosphere in the province when

the Commissioners arrived. Arabs kissing hands of Pashas, police stalking foreign guests and

beating people with sticks – all aspects of this chaotic scene that Téléki closed with his

intervention to forbid the police from striking people in his presence. The scene was completed

when he arrived in front of the Nationalist Club of Iraq, where he was welcomed by a counter-

demonstration of students “wearing cockades of the Iraq colours” and chanting in support of

King Feisal.71 These essentialized depictions of the people recurred throughout the

commissioners’ report submitted to the Council of the League of Nations. In the report, they

explained that their methods of investigation “necessarily involved a certain emotional

excitement among a population whose political education [was] still at a very primitive stage”

and had been subjected to intensive propaganda campaigns. 72 The Commissioners noticed that

many of the witnesses interviewed were uncomfortable responding to their questions, but found

private conversations less intimidating.73 These intimidating questions concerned issues

pertaining to nationhood, race, religion and “genuine” identity. Not surprisingly, the indigenous

population found such questions obscure, suspicious, or outright irrelevant.

One of the Commissioners, M. af Wirsén, had remained in Mosul and visited the villages as far

as Mount Sinjar, Tel Afar, Karaqosh and Aqra. He specifically summoned the notables from the

neighbouring villages (a list of their names had been provided by the assessors) for interviews.74

The other category of people interviewed were the chiefs of Arab tribes in the west of the Tigris,

most notably the chief of the Shamar tribe.75 People in the villages and country districts were

faced with questions of national identity, borders and state formation for the first time in the

commissioners’ questions. The commissioners explained that the strange reception of such

questions was attributable to the lack of political experience and backward civilization of the

people, especially those residing in the countryside. Most significant, however, was that many of

71 Ibid. 72 Ibid. at 10 (emphasis added). 73 Ibid. 74 Ibid. 75 Ibid. at 12. The commissioners held interviews in the Erbil district, Sheiklawa, Makhmur, and the Kurdish tribes of the Dizdai, Kushnawa, Kora, Girdi, Sheikh Bisani, the Arab tribe of the Thai, and the Sarli villages.

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the people interviewed had no knowledge of the question or the dispute in the first place.76 It was

not relevant to their day-to-day activities. In keeping with the League’s civilizational discourse

so prominent in the language used and choices made by the Commissioners, they openly singled

out particular classes as the appropriate categories of interviewees from the province. Thus

notable characteristic of the semi-civilized region was that not all its inhabitants were considered

backward and in need of direct tutelage. As elsewhere in the A Mandates, in Mosul educated

notables, chiefs of tribes and merchants and feudal lords were the classes of people to which the

Commission had the most access.

The Commissioners would typically start the consultation process by giving a statement of the

case, which changed according to “the position, intelligence and state of education of the

witnesses.”77 They would assure all witnesses that their depositions would be confidential, then

they would explain the object of their mission in simple terms and pose the specific questions

after the assessors left. The procedure, according to the commissioners, was seamless and gave

witnesses the confidence to respond accurately and comfortably. The British authorities

(unsurprisingly) supplied the list of “notables”. The Commission conspicuously explained that its

reliance on those British lists was not a compromising decision. In fact, it reported that all

notables in these lists expressed a “definitely pro-Turkish” sentiment in their responses.78

Therefore, the commissioners implied, the British mandate could be trusted as a reliable source

for the purposes of information gathering.79 Further pre-empting any doubts over its objectivity,

the Commissioners explained in their report that they not only questioned the notables, but also

the clerics of mosques selected indiscriminately from upper class and poorer class

neighbourhoods.80 They also interviewed “home owners”, “village owners” and “landed property

76 Ibid. 77 Ibid. 78 Ibid. 79 Sarah Shields, however, refers to Commissioner Paulis’s account of a meeting organized by the British authorities with a number of merchants. Paulis described the merchants’ opinions in response to trade-related questions as “in a sense favourable to the British thesis.” See Shields, “Mosul, the Ottomans, and the League of Nations”, supra note 67 at 228. 80 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 12.

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owners”.81 The population interviewed seemed to have been mostly Mosul’s elite and its

religious leaders.82 Notably, the Commission had indicated earlier that a plebiscite would not be

possible in Mosul precisely because education was rudimentary and the social organization was

“mediaeval or feudal.” Consequently the indigenous population would simply follow the

opinions of their tribal chiefs and land-owners on whom their livelihood depended.83

In this connection, the Commissioners felt bound to explain in their report that the inquiry

needed to not only deal with questions of political sovereignty, but also to be “a psychological

study of the population.”84 While the aspects of this psychological study were not clearly

explained by the Commissioners in the report, they were implied when ethnic or racial

sensitivities emerged out of their interviews. This explains the alarmingly detailed and extensive

attention given to the nature, features, temperaments, character and even morals of each of the

different “races” or ethnicities.

Moods, Temperaments and Characters: the League’s 3Inquiry and the Ethno-racial Making of Mosul

The ethnic and racial composition of Mosul seemed to have attracted the Commission’s

undivided attention. They divided the investigation into three main questions: 1) What was the

total population and the percentages of each race? 2) What was the territorial distribution of the

races, the ethnic character of the town of Mosul and the status of the nomads? 3) What were the

characters and affinities of the different races?85

81 Ibid. 82 As the Commission was approaching the end of its inquiry, the Commissioners left for Zakho, passing through the large Christian villages in the Al-Qosh district and the Yezidi villages. They, specifically, also interviewed the Christians residing in the villages of the Kurdish tribes. 83 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 19. 84 Ibid. 85 Ibid. at 30.

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3.1 Whose Majority?

As part of its “ethnographical” investigation, the Commission gathered the population statistics

for Mosul provided by the different parties. The intention was to reach the most accurate

estimate of the “race” or “ethnicity” of the majority of the population in the disputed territory, as

well as which races or ethnicities constituted “minorities”. The following table compares the

statistics received by the League’s Commission from the Turkish, British and Iraqi

governments.86

Turkish Census

submitted at

Lausanne

British Estimate in

1921

Iraqi Government

Census 1922-1924

Kurds 263,830 424,720 491,007

Arabs 43,210 185,763 166,941

Turks 146,960 65,895 38,652

Christians

31,000 77,000 61,336

Jews 16,865 11,897

Yezidis 18,000 30,000 26,257

Total settled

population 503,000

Nomads 170,000

Total 673,000 785,468 801,090

An additional column had the 1919 British estimate, which interestingly included only religious

categories. Thus the British government would only later adopt ethnicity to categorize the

population of Mosul.87

86 Ibid. 87 Ibid.

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Unsurprisingly, both parties disputed the statistics. The British argued, among other things, that

prior to the war, the Ottoman Empire had no system of census by nationality; it classified the

population by religion due to the millet system. The Turkish government disputed the ability of a

few political officers who took short trips to the region to determine the estimates. Eventually,

the Commission found that the statistics provided by the Iraqi government were most likely to be

the truest estimates.

This section of the report was devoid of political or legal commentary by the Commissioners.

The choice of categories was not addressed, discussed, or disputed by the Commissioners or the

parties concerned. For the League, it was a preliminary technical matter to be sorted out. The

relationship between determining the majority population and determining the “will of the

people”, to which the Commissioners had allocated a separate section of their report, did not

emerge as an important or even a relevant question to be investigated. In a sense, what Sarah

Shields called “the new gospel of self-determination”, on which the League Commissioners

intended to base its decision, was a separate matter.88 For Shields and others such as Guiditta

Fontana, self-determination was ideology or gospel.89 On Shields’s account, three European

Commissioners arrived in Iraq with the intention of discovering the will of the people so as to

fulfil their obligations as guarantors of the principles of international law and self-determination

for the people of Mosul, as was expected of commissioners of the League of Nations at the time.

Shields argues that the Ottoman legacy in Mosul still resonated with the province’s population,

seven years after Britain had taken control of the province.90 Even when British officials forced

Mosul’s population to raise the Iraqi flag and trained them in how to respond to the League

commissioners’ questions, imprisoned the pro-Turkish residents and controlled the movement of

visitors, Iraqi nationalism was still marginal in comparison to the Ottoman legacy in the

province.91 Therefore, the Commissioners were confused when the people of Mosul did not

respond to their questions, as they had expected, in ethno-national terms. On the contrary, these

88 Shields, “Mosul, the Ottomans, and the League of Nations”, supra note 67 at 217. 89 See Guiditta Fontana, “Creating Nations, Establishing States: Ethno-Religious Heterogeneity and the British Creation of Iraq in 1919-1923” (2010) 46:1 Middle East. Stud. 1 at 3. 90 Shields, “Mosul, the Ottomans, and the League of Nations”, supra note 67 at 217. 91 Ibid.

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identifications seemed unimportant to the inhabitants. While the Ottoman legacy could not be

underestimated, the insignificance of these questions lay not only in the influence of Ottomanism

in the province, but in other factors that held greater interest in the politics of governance and

survival in the province. As I will show, these included the class politics, the Kurdish plight and

most significantly the politics of capital embodied in the struggle over Mosul’s oil fields.

The League Commissioners, however, remained committed to providing a report that

comprehensively analysed every conceivable aspect of race and ethnicity in the province

including the “character” of the town, the “nature” of the Kurds, the temperaments of the

Sharkas and the imagination of the Yezidis.

3.2 What is the “Ethnical Character” of the Town of Mosul?

For the Commissioners, the “character” of the town of Mosul was at times simply the language

spoken by the inhabitants; at other times, it was their identity, or the more “scientific” racial

origin. The Turkish government claimed that Turkish, Kurdish and Arabic were the languages

spoken in Mosul. Those residents who spoke Arabic were “taken for Arabs [but were] in reality

Turks who, having long been in contact with Kurds and Arabs, have also learnt these two

languages.”92 The Turkish government further claimed that the people never regarded themselves

as having an Arab identity and certainly did not consider the province to be part of the newly

created Iraqi nation state. In fact, in their memorandum submitted to the Council of the League

of Nations, the Turkish representatives claimed that the population of the town of Mosul was

mainly Turkish and Kurdish.93 The British government responded to these arguments with the

authority of the knowledge acquired by British officers during the occupation of Mosul. More

significantly, the British representatives argued that Mosul had been known to renowned

“travellers” of the region as one of the great Arab cities: “It is an Arab town built by Arabs,

which has not, during centuries of Turkish rule, lost its Arab characteristics.”94 To which the

Commissioners responded that their personal impression was certainly that “the town of Mosul

92 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924 , supra note 1 at 39. 93 Ibid. at 40. 94 Ibid.

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[was] undoubtedly Arab in character.”95 This opinion was given with the caveat that the

Commissioners could not consider the last census made by the Iraqi government as accurate,

which indicated that Mosul was inhabited by 74,000 Arabs, 20,000 Christians and 4,000 Jews.

They noted that it was impossible that there would be not a single Turk in the town.96 Under

Turkish rule, families of Turkish officials and officers resided in the town and mixed with the

population. There was even a small Turkish town in the city of Mosul. Invoking the narratives of

earlier “well-known travellers”, such as “Oliver”, who visited Mosul in 1890 before the question

of nationality was a subject of concern, they noted that he estimated that 25,000 Arabs, 15,000

Kurds and 15,000 Turks inhabited the town of Mosul.97 It is unclear how the Commissioners’

certainty that the town was “undoubtedly Arab in character” followed from the information

provided by Oliver, the renowned traveller of the Orient.

3.3 The League’s Search for “Origins”: Who is a Kurd? Who is an Arab?

The Commissioners’ report gave an astoundingly comprehensive account of “the character and

affinities of the various races” in the province. In fact, the section on “ethnical and racial”

analysis of the population constituted a third of the entire report including all the details,

introductions, maps and appendices. This section of the report divided the races of the province

into Kurds, Turks, Yezidis, Nomadic and Settled Arabs, the Sarlis and the Sharkas and

Christians.

The Commissioners explained that the Kurds constituted the largest percentage (approximately

five-eights) of the population of Mosul, and were also “the most interesting factor.”98 They were

neither Arabs nor Turks and their origin remained a disputed question. Discovering their history

and their ethnical relationships to other races in the area “naturally [was] of the highest

importance” to the Commissioners.99 The British government in its memoranda contended that

95 Ibid. (emphasis added). 96 Ibid. 97 Ibid. 98 Ibid. at 43. 99 Ibid.

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the Kurds were Iranians, spoke Iranian (Farsi) and had “different blood” from the Turks. In fact,

they were as related to the Turks as they were to the Chinese. The British memoranda stated that

they had different customs and habits from those commonly associated with the Turks, especially

with regards to the position of women. “Any traveller,” they asserted, can distinguish between

the physical characteristics and appearance of the Kurds and the Turks.100 British representatives

pointed out that the Kurds were more closely connected to other Kurds in Persia than to Kurds

living in Turkey. Turkey for its part, cited the Encyclopaedia Britannica, which claimed that the

Gudu (or Kardu), who from the remotest times had inhabited the mountains of Assyria, described

the people inhabiting the region as people of Turanian and not Iranian origin.101 While the Kurds

and Turks spoke different languages, the Turkish government argued they were from the same

race, had the same religion and customs and formed a single unit.102

The Commissioners provided their own version of history, warning the Council of the League of

Nations that they could not express a precise opinion on the “real” racial origins of the Kurds.

However, going as far back as the Babylonians, the Commissioners claimed that the

autochthonous inhabitants who lived at the dawn of history in the mountains overlooking

Assyria, Babylon and the Iranian Plateau constituted some of the ancestors of the Kurds.103 In

other words, they explained, “the Kurdish ethnical stock or “compound” also contains this

element.”104 Citing Sir Mark Sykes’s observations on the “real” Kurdish ethnical stock at the

turn of the century, the Commissioners maintained that the Kurds inhabiting the country between

Lake Van and Lake Urmia, the Tigris and the plains of Iraq were descended from the same

ancestors (the Karduchi of Xenophon).105 The Commissioners concluded that while the Kurds

100 Ibid. 101 Ibid. 102 Ibid. 103 Ibid. at 44. 104 Ibid. 105 Ibid. Confirming the British position, the Commissioners traced the affinities of the Kurds in Mosul with the Kurds in Persia (more than Kurds in Turkey) since the Gutus to whom the Turks referred to disappeared from history long before the Karduchi were heard of. The Karduchi disappeared much later, most likely when they came under Turkish rule, and it was then that Kurds “appeared”.

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had an “obscure origin”, they had been able to establish that of all the “Moslem races”, the Kurds

lived on the most harmonious terms with the Christians.106

The level of detail associated with this racial genealogy had significant legal outcomes for the

province, it essentially made minorities out of majorities, as will be discussed based on their

“field visit” and examination of “on the spot conditions” in Mosul. The Commission was

establishing its own historically and legally authoritative account of not only the “racial profile”

of the people inhabiting the province, but also their common characteristics and their physical

features as authoritative accounts.

The report moved to analyse further the Turkish “racial stock”, pointing to the radical

disagreement of both parties on the number of Turks in the province, as well as the classification

of some inhabitants as the “real” racial assignment of “Turk” to some inhabitants. The British

government asserted that the Turks in Mosul were not Osmanlis; they were Turkomans.107 They

spoke Turanian language, which resembled the Azerbaijani dialect rather than the Turkish

spoken in Constantinople or Anatolia.108 They were the descendants of Turkomans who initially

came from Iran before the creation of the Ottoman Empire.109 The Turkish government

maintained that there was no justification for distinguishing between the Turks of Mosul and the

Turks of Anatolia. While the dialect in Mosul differed from the one in Constantinople, there was

no other part of Anatolia that spoke the same Turkish as in Constantinople.110 The name “Turk”,

the government submitted, was given to all the peoples in Asia and in Europe who spoke Turkish

languages or dialects. The name was ancient, dating as far back as the sixth century in the

Chinese chronicles.111

The Commission for its part explained that in the Ottoman Empire, the term “Turk” also had a

“barbaric” and “uncivilized” connotation until approximately 1900, when as a result of the rise

106 Ibid. at 47. 107 Ibid. at 47, 48. 108 Ibid. 109 Ibid. 110 Ibid. 111 Ibid.

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of Pan-Turkish nationalism, it came to be regarded as an honourable term. Turkiyeh became the

official name of the country since the abolition of the Sultanate and the term “Osmanli” was

supplanted.112 Therefore, the Commissioners concluded that the term “Turk” could not be

applied to the Turkish population of Iraq. The population was “Turko-Turkoman” of mixed

origin, consisting of descendants of Turkish stocks. They were not “the nearest relatives” to the

Turks of Constantinople or Angora, but they were connected to the Turkish Republic and could

therefore be considered the same people.113

It is not surprising that the Commissioners continued this investigation of racial purity with the

“devil-worshippers,” as they called them in the report. According to the Commissioners, the

“devil-worshippers” or the Yezidis “undoubtedly” formed a different group of people.114 They

were settled almost only in the Western desert. The British and Turkish governments argued that

the Yezidis were of Kurdish race and spoke Kurdish, but that they were not Muslims. In fact,

they regarded Islam as “a sacrilegious religion.”115 The Commissioners could not refrain from

observing how greatly they were struck by the physical resemblance between the Yezidis of the

Ba’Idra and Sheikh Adi district and “the types” seen on famous Assyrian monuments.116 They

concluded, however that the origin of the Yezidis was extremely obscure, and that they were

neither Turks nor Arabs. They had some affinities with the Kurds, but their origins were not

entirely the same.117

As for the Arabs, the British argued that there were only “pure” Arabs in the wilayet of Mosul.

The Commissioners also agreed that there was no significant distinction to be made between the

nomadic Arabs and city Arabs – they were all Arabs, which meant that more people fitted into

112 Ibid. 113 Ibid. at 48. 114 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 49. 115 Ibid. 116 Ibid. 117 Ibid. at 50.

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the category of “Arabs”.118 The report also discussed the true origins of the Sarli and Sharkas and

the Christian population.119

In their conclusions, the Commissioners identified the Kurds as agricultural labourers after

descending from the mountains and changing their mode of life. The Kurds gradually came to

constitute the province’s peasantry, while many Kurds still owned much of the arable land and

were “Kurdising” certain towns.120 The Arabs had been advancing towards the territory for

centuries and eventually settled along the riverbanks where they cultivated the lands, founded

cities and started trading activities. In fact, the main merchants in Mosul were Arabs.121 As for

the Turks, they came to Mosul during war as soldiers. They were not traders, but they had always

been administrators, eventually forming an aristocracy of soldiers and administrators. In some

cases they became landowners.122 The Turkish landowners usually hired Kurds and Arabs to

work the land.123 This very brief ethno-class distinction in the conclusions of the “ethnical”

section of the Commission’s report to the Council of the League of Nations was the only

reference made to any other distinguishing factor, other than race and ethnicity. The

Commissioners had declared at numerous points in their report that ethnical considerations

should not be the only determining factor, especially if the principle of self-determination was to

be upheld. Notably, here would be the class position of the Kurds as the province’s peasantry,

who since this time had been discriminated against by subsequent Iraqi governments. However,

the category of “class” as a separate, albeit related aspect of the province’s politics of governance

was not considered beyond those very brief references. The Commissioners remained

committed, despite their statements, to ethnical-racial discourse, with an alarmingly detailed

interest the genealogy of races in the province.

118 Ibid. 119 Ibid. at 51-53. 120 Ibid. at 55. 121 Ibid. 122 Ibid. 123 Ibid.

117

Unsurprisingly, the problem was, as the Commissioners conceded, that the political frontier

between Mosul and Persia or Syria, or between Mosul and Turkey and Iraq did not constitute

racial boundaries.124 The towns inhabited by Turkish majorities or large Turkish minorities were

situated in the southern part of Mosul (in proximity to the Iraqi side), whereas the Arab town was

situated in the center of the northern part of the disputed territory (in proximity to the Turkish

side).125 Thus if ethnicity were the only consideration, then it would be necessary to create an

independent Kurdish state since they comprised five-eights of the population of Mosul.126 And

on this scenario, the Yezidis could easily be assimilated by the Kurds. The report did not discuss

further the possibilities for implementing this scenario for creating a Kurdish state and whether it

was considered among the different courses of action suggested to resolve the dispute, especially

if “self-determination” in its most rudimentary understanding would have been taken into

consideration.

The fact that the report reached the conclusion that ethnicity on its own was not the deciding

factor is one issue, but the centrality of and level of detail concerning the ethno-national and

racial aspects and history is another. There is more to be said than that race is not scientific and

historically traceable to a pure origin and that it is socially constructed. This close study by the

Commissioners of the historical and scientific origins of the different races in the province

should be understood as part of a specific system of classification “with its metaphorical

construction of racial purity for whites,” historically connected to the “badge of enslaveability”

and coloniality of the non-European subject.127 Tracing the “racial purity” of the inhabitants is

integral to the system of racial and colonial subordination embedded in the League of Nations

framework and in international law as a historical discipline. The report is typical of the singular

angle of ethno-nationality deployed by the League to settle self-determination disputes.

124 Ibid. at 55. 125 Ibid. at 58. 126 Ibid. at 55. 127 Neil Gotanda, “A Critique of Our Constitution is Colorblind” in Kimberlé Crenshaw, et al, eds. Critical Race Theory: The Key Writings that Formed the Movement (New York: The New Press, 1995) 257 at 262.

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3.4 The League of Nations’ Construction of the Iraqi Nation-State: The Logic of Capital and the “Rebellious” Kurds

While the League of Nations’ Commission of Inquiry had been consistently attentive to showing

that it was not biased toward the British position despite agreeing with most of its submissions,

its strange silence on the possibility of creating an independent Kurdish nation-state is telling.

Although emphasizing that the final decision on the future of Mosul should not be determined

solely by ethnicity, the Commission was an active player in creating the legal conditions needed

to legitimate the British project of constructing an Iraqi nation-state. The League saw the

skeleton of an existing Iraqi state as a viable future member of the community of nations. It

started forming the traditional state structures that were already central features of European

states at the time. The Kurds may have constituted a majority and qualified for the right to self-

determination. But they were also constructed as “rebels” as far as international law was

concerned. To an extent, they became excluded from the scope of application of international

law. They disturbed the peace, threatened the sovereignty of the Turkish state and had been a

consistent source of trouble for the British government in Iraq. There was a change of attitude

toward the Kurds. At the moment when the Kurds were on the brink of self-government and

possibly statehood, the question of oil concessions arose, and they were suddenly sold out.

Already in 1919, Britain could not risk a Kurdish revolt or a strong separatist movement in

Mosul, as Kurdish nationalism started to get stronger under the leadership of Sheikh Mahmud

Barzanji. As new deals and concessions were being made, the Kurdish question hovered over the

struggle for capital and resources in Iraq and threatened to disturb the agreed upon spheres of

influence.

Then Secretary of State for Foreign Affairs Lord Curzon instructed A. T. Wilson, the chief

political officer to the British force in Mesopotamia, to undertake a referendum (commonly and

wrongly referred to as a plebiscite) in Iraq. The referendum was exclusive to the notables,

sheikhs of tribes and representatives of communities. There was no secret ballot, and the

following three questions were asked: “(1) whether they were in favour of a single Arab State

under British tutelage extending from the northern boundary of the Mosul Wilayet to the Persian

Gulf; (2) if so, whether they considered that the new state should be placed under an Arab Emir;

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(3) in that case, whom would they suggest?”128 During the Mosul dispute, the League-appointed

Commission modeled its questions along very similar lines. As one observer noted, only

“satisfactory” answers were considered in this referendum, and meetings held for the inquiry

were far from being representative of the local population.129 The Holy cities of Karbala and

Najaf gave a partially negative response. In Mosul, the Kurds (including the non-Muslim

Yezidis) clearly indicated that they did not wish to be included under an Arab state for fear of

discrimination. Those interviewed in Basrah were mostly landowners, who had an interest in

maintaining the British occupation over the whole of Mesopotamia, including Mosul.130

A second referendum took place in 1921, and only the tribal chiefs, legally elected members of

the administrative councils, the “Councils of the Elders” recognized by the public, the

administrative heads of towns and villages elected by the landowners were able to participate.

The representatives were asked to sign the following document:

“We, the undersigned residents of … in the Liwa of … have heard, understood and fully considered the above resolution of the Council of State, and it results that … expresses themselves in agreement therewith and profess their allegiance to Emir Faisal while … have signified their dissent.131

These two referenda were part of the British efforts to build an in Iraqi nation prior to the League

of Nations” involvement in the dispute. It was clear that these efforts were, at least initially,

intended to foster a pro-Emir Faisal sentiment among the local population. In fact, the newly

established department of the British Colonial Office designed to deal exclusively with the

Middle East decided to openly support the candidature of Emir Faysal as ruler of Iraq.132 In the

first referendum, parts of the Kurdish Liwa (or provincial district) of Kirkuk, specifically the

town of Kirkuk, voted against inclusion with Iraq.133 However, Basra, Baghdad and Mosul voted

128 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 17. 129 Atarodi, supra note 13 at 134, 135. 130 Ibid. 131 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 18. 132 Wadie Jwaideh, The Kurdish National Movement: Its Origins and Developments (Syracuse, NY: Syracuse University Press, 2006) at 186. 133 Ibid.

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in favour of forming one Iraqi state.134 When the dispute later arose at the League of Nations, the

Turkish representative convincingly argued against accepting the results of this referendum

because it was undertaken when the entire territory was under British military occupation.135

In the second referendum, the entire Kurdish provincial district of Sulaiymania refused to

participate.136 The 1924 British memorandum to the Council of the League of Nations explained

that according to the British submissions at the time of the 1921 referendum, the Liwa of

Sulaiymania was governed by Article 64 of the 1920 Treaty of Sèvres between the Allies and the

Ottoman Empire.137 Most significantly, Articles 62-64 of the Treaty provided for the creation of

an independent Kurdish state, including southern Kurdistan (Mosul).

Article 62: A Commission … shall draft within six months from the coming into force of the present Treaty a scheme of local autonomy for the predominantly Kurdish areas … The scheme shall contain full safeguards for the protection of the Assyro-Chaldeans and other racial or religious minorities within these areas…

Article 63: The Turkish Government hereby agrees to accept and execute the decisions of both the Commissions mentioned in Article 62 within three months from their communication to the said Government.

Article 64: If within one year from the coming into force of the present Treaty the Kurdish peoples within [these] areas … shall address themselves to the Council of the League of Nations in such a manner as to show that a majority of the population of these areas desires independence from Turkey, and if the Council then considers that these peoples are capable of such independence and recommends that it should be granted to them, Turkey hereby agrees to execute such a recommendation, and to renounce all rights and title over these areas…. no objection will be raised by the Principal Allied Powers to the voluntary adhesion to such an independent Kurdish State of the Kurds inhabiting that part of Kurdistan which has hitherto been included in the Mosul vilayet.138

134 Frontier between Turkey and Irak: Memorandum from the British Government is communicated for consideration of the Council, Geneva, August 19, 1924, League of Nations, C. 396.1924 VII, League of Nations Archives at 6. 135 Ibid. 136 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 18. 137 Ibid. 138 The Treaty of Peace Between the Allied and Associated Powers and Turkey, signed at Sèvres, UK Treaty Series No. 11 (10 August 1920).

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The Treaty of Sèvres was almost like a Turkish Versailles: described by Philip Marshall Brown

to be “as fragile as the porcelain of that name, though lacking its charm.”139 Detested by Turkey

for its impositions, it was a great victory for the Kurdish nationalists. It was the first time that

Kurdish independence was recognized in an international treaty.140 The treaty was renounced by

the Turkish government and was never ratified.

After the second referendum, a reconciliatory alliance was formed between Britain and the

Kurdish nationalist leader Sheikh Mahmud Barzanji in 1922. He agreed to help prevent the

Turks from occupying Sulaymaniya.141 In return, both the British and Iraqi governments would

support his agitation for Kurdish nationalism. In fact a number of Kurdish officers in the Iraqi

army were seconded for duty to Sheikh Mahmud’s forces.142 When Shiekh Mahmud began the

second rebellion of Sulaymaniya in 1923 (the first was in 1919), the British High Commissioner

threatened Shiekh Mahmud that if he did not return to Baghdad and stop the rebellion, British

forces would reoccupy the town.143 When he rejected these demands, Britain bombed

Sulaimaniya in 1923 and reoccupied it by July 1924, demonstrating that the British authorities

would not tolerate Kurdish separatism.144

Like the British government, the League was wary of opening this can of worms, especially after

an introduction to the history of the Kurdish rebellions in the region and Britain’s efforts to curb

Kurdish nationalism through referenda and other mechanisms. The Commission had, on several

occasions, although only indirectly, explained that if only ethnic considerations were to be

considered in the final decision, then Mosul should become a separate Kurdish state.

Nevertheless, this idea was never taken seriously, as a Kurdish nation-state would be a state of

rebels, a fact that could not be tolerated in the League’s reshuffling and constructing of nation-

139 Philip Marshall Brown, “From Sèvres to Lausanne” (1924) 18:1 AJIL 113 at 113. In addition to providing for a Kurdish state, the Treaty of Sevres had other significant challenges to the Turkish government, most notably the reinstating of the Capitulations after their abrogation by the Ottoman government in 1914. See Philip Marshall Brown, “The Capitulations” (1922-1923) 1:4 For. Aff. 71 at 71. 140 Jwaideh, The Kurdish National Movement, supra note 132 at 186. 141 Ibid. at 192. 142 Ibid. 143 Ibid. at 198. 144 Fontana, “Creating Nations, Establishing States”, supra note 89 at 10.

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states in the semi-periphery after World War I. The Commission saw Iraq as the only viable

nation-state in the region, which coincided with the British position. This gradually became

clearer as the Commission’s report proceeded to the economic arguments, with the struggle over

the oil concessions in the background.

Imperial Capital as Economic Prosperity 4The report of the Commission submitted to the Council of the League of Nations, in addition to

comprehensively analysing the ethnic considerations and geographical, historical and strategic

arguments, included a significant section dedicated to the economic arguments. Despite the

detailed attention given to the racial and ethnic character of the province, the recommendations

of the Commission and the final decision made by the Council of the League hinged upon the

economic arguments. In fact, British and Iraqi officials, on the advice of British official C.J.

Edmonds, gradually shifted their arguments at the League from emphasizing ethnic self-

determination to emphasizing Mosul’s economic ties with Baghdad.145 The latter argument

became increasingly compelling to the Commissioners as they moved through various parts of

the province and realized that the question of nationality was not a central concern for the

inhabitants.146

4.1 Trade and the Politics of Movement of Colonial Products

The British memorandum reiterated what Lord Curzon had stated at Lausanne: that the outlet for

the export trade of the province of Mosul was to and through Iraq, and to a lesser extent through

Syria.147 Lord Curzon added that trade between Mosul was insignificant. The Commissioners

accepted this statement, noting, however, that central and southern Iraq were not as vitally

dependent on the products of Mosul as the British memorandum contended.148 This was true

because Iraq was at war when Britain had militarily occupied Baghdad, and the occupation led to

a scarcity of supplies in southern Iraq because a large number of British troops had to be fed.

145 Shields, “Mosul, the Ottomans and the League of Nations”, supra note 67 at 227. 146 Ibid. at 225. 147 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 60. 148 Ibid. at 61.

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During the war, communications between Mosul and Southern Iraq were severed and inhabitants

of Mosul and Kirkuk experienced a famine resulting in many deaths.149 Therefore, exports would

have not been exactly likely during this period. However, the Commissioners reiterated the

British argument that Baghdad was the only market for the agricultural produce of the disputed

territory. More significantly for Britain was the route taken for “colonial products” to reach

Mosul.150 They generally passed through the Persian Gulf at the port of Basra, on to Mosul.151

The maintenance of existing trade routes and opening possibilities for new ones were central

concerns for the Commissioners. It was not clear exactly how this particular issue had been

mandated by the Council as part of the inquiry, especially as the investigation had proceeded

from the guiding principle of self-determination. They did allocate a separate section of their

report to “the views of the population”, as it was titled, which was somehow separate from the

ethnic, historical, economic and strategic considerations.

Nevertheless, the oil fields and the movement of colonial products seemed to have been a

significant consideration to the Commissioners, especially Commissioner Paulis who seemed to

have been fascinated by the prospects of import/export to be made possible by the planned

railway that would go from Basra and Baghdad to Kirkuk and pass by the “oil-bearing

region.”152

4.2 The Oil Question on the Margins

When Mark Sykes arrived at the oil exploration site in Mosul with its “stinking smoke”, its

“filthy workmen” and the “yellow hills” in the horizon already in 1905, he saw it as part of

England’s undiscovered wealth: “Maintenant nous sommes en Angleterre.”153 During the war, H.

H. Asquith, the Prime Minister of Britain, set up an inter-departmental committee headed by

Maurice de Bunsen in 1915 to determine British policy toward the Ottoman Empire. The de

149 Ibid. 150 Ibid. at 63. 151 Ibid. 152 Shields, “Mosul, the Ottomans, and the League of Nations”, supra note 67 at 229. 153 Leslie, Mark Sykes: His Life and Letters, supra note 7 at 94.

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Bunsen committee proposed the annexation of the wilayet of Mosul because “oil… makes it

commercially desirable” for Britain to control Mosul, and this area could become a granary for

an unrestricted supply of corn.154 It also recommended that Turkey should be preserved as a

federal state and be required to recognize the independence of the newly created states in the

Arabian Peninsula that would take full form with the divisions realized in the Sykes-Picot

agreement.155

Before the war, oil had already started to replace coal, since it was more efficient, economical

and faster. The increasing demand for oil meant that after the war the British Empire would have

to expand its oil sources. After Romania and Russia dropped out of the Entente, the British

supply of oil mostly came from American oil fields, which were already reaching their limit.156

Before the occupation of Mosul, Sir Maurice Hankey, the Secretary of the War Cabinet, wrote to

Lloyd George that there was “no military advantage” to going forward in Mesopotamia.157 He

asked Lloyd George, “[w]ould it not be an advantage before the end of the war, to secure the

valuable oil wells in Mesopotamia?”158 When the British eventually reached Mesopotamia in

October 1918, the forces were ordered to proceed to the Wilayet of Mosul. Lloyd George had

declared earlier in the same year that he favoured going all the way to Mosul before the war was

over even if Britain were accused of being “capitalistic, monopolistic, or imperialistic.”159

Lloyd George’s plans were realized at the San Remo Conference held in 1920, when the post-

World War I Allied Supreme Council met to determine, among other things, the allocation of the

Class A Mandates of the League of Nations. By the end of the conference in San Remo, Britain

154 Atarodi, supra note 13 at 24, 27 155 Ibid. 156 Helmut Mejchar, “Oil and British Policy towards Mesopotamia, 1914-1918” (1972) 8:3 Middle East. Stud. 3 at 384. 157 Ibid. at 386. 158 Ibid. 159 Kedourie, In the Anglo-Arab Labyrinth, supra note 12 at 51. Ten years later, Clemenceau explained the concession he made to British demands over Mosul. He said, “I should like to speak to you of another of my crimes – yes – Mosul. I have been severely attacked because of Mosul and the oil fields. Well, yes, I gave up Mosul; but what they forget is that I used it as a bait in order to get Cilicia, which several of our good allies wanted us not to have. Cilicia was … a very pleasant country…. I therefore said to the English, “which would you rather have, Mosul or Cilicia…?” Ibid. at 65.

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had gained full control of Iraq, including Mosul.160 The United States protested the resulting

agreement, claiming that it gave exclusive rights to the mandatory power to exploit oil in the

region. Article 7 of the San Remo Agreement stipulated that “[t]he British Government

undertake to grant to the French Government or its nominee 25 percent of the net output of crude

oil at current market rates…It is also understood that the said petroleum company shall be under

permanent British control.”161 Lord Curzon, the British Foreign Minister explained that the

agreement did not aim to create monopolies, but that it was consistent with the “most-favoured

nation” (MFN) clause that was followed by the United States.162 Still, with direction from the

British government, the Anglo-Persian Oil Company offered the successor companies of the

American Standard Oil Company, a concession of fifty percent of the Anglo-Persian Company’s

share in the Turkish Petroleum Company’s rights to the exploitation of oil in Iraq.163 Mosul’s oil

fields thus became the resource that combined the interests of European and American

governments, as well as private interests represented by large petroleum conglomerates.

During the Commission’s visit to Mosul, the Iraqi parliament ratified the oil concession

agreement of March 1925 between the Iraqi government and the Turkish Petroleum Company

(TPC) (which became the Iraq Petroleum Company in 1929), an event which seemed to pass

unnoticed by the Commission, although it happened under its very nose.164 The TPC had

originated in a consortium of oil companies established before the First World War, which

guaranteed a share for the Ottoman government in Mesopotamian oil.165 After the war and the

peace settlement, the German and Ottoman shares in the company, like the German and Ottoman

territories, were replaced by Allied powers. By the late 1920s, after consolidating American oil

interests, the TPC was owned jointly by the Anglo-Persian Oil Company (23.35%), Royal Dutch

Shell (23.75%), Compagnie Francaise des Petroles (23.75%) and Gulbenkian (5%), making the

160 Courtney Hunt, The History of Iraq (Westport: Greenwood Publishing Group, 2005) at 61. 161 Full text of the treaty can be found in J. C. Hurewitz, Diplomacy in the Near and Middle East: A Documentary Record (1914-1956) (New York: Octagon Books, 1956) at 75-77, 97. 162 Ibid. at 97. 163 Arnold Toynbee, Survey of International Affairs (London: Oxford University Press, 1927) at 466. 164 Tripp, A History of Iraq, supra note 53 at 60. 165 Ibid.

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British share the largest in the company and including a significant stake of the British

Government because of its shares in the Anglo-Persian Oil Company.166 Although all this was

happening during the Commission’s inquiry in Mosul, it was largely omitted from the question

of sovereignty and self-determination of the people of Mosul. In fact, as the Commission was

roaming the bazaars and interviewing tribal leaders, British oil companies, backed by the British

government, were able to establish an extensive and exclusive concession for the TPC, while

closing the door to Iraqi co-ownership, promised in 1920 when 20 per cent had been allocated to

the “native government.”167

During the negotiations for the TPC concession, the British government implied to the Iraqi

government that agreement on the concession meant safeguarding Mosul through British support

at the League of Nations. Eventually, the TPC remained a British-registered company and was

granted exclusive rights to the exploitation of oil in all of Iraq, except for the province of

Basra.168 King Feisal, using the only remaining threat, explained to the League commissioners

that the realization of these contracts was dependent on the political and economic stability of

Iraq, which would be jeopardized if the Iraqi frontier was endangered. This, he argued was a

matter of “life and death.”169

When the Turkish Petroleum Company (comprised of the Anglo-Persian Oil Company, the

Royal Dutch Group, the French Group and the American Group) reopened its negotiations with

the Iraqi government, begun before the Great War, a concession deal was reached to cover the

whole of the Kingdom of Iraq except the Basra region.170 The concessionaires would have the

right to select 192 square miles, divided into 24 rectangular areas of 8 square miles each.171 The

Iraqi government agreed on a period of three years to commence on September 14, 1925 for a

166 Ibid. 167 Ibid. 168 Ibid. 169 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 6. 170 Ibid. at 68. 171 Ibid.

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complete study of the country and for the selection of the 24 initial areas.172 The geological

information obtained would be placed at the disposal of applicants for concessions, and after one

year any individual or company might request that the concession for any area be included in

those put up annually to auction. One of the lines anticipated as important for oil discoveries was

the one at the northern border that would pass through Kirkuk and Mosul.173 These details were

important for the Commissioners since they claimed that the economic prosperity of the whole of

Iraq was dependent on its possession of the oil-bearing disputed territory. Iraq’s economy would

experience an “upheaval” since new labour would have to be hired to work the oil wells, the

quantity of food produced would have to increase, and thus farmers and shepherds would enter

into “unparalleled era of prosperity.”174 This was also important internationally, the

Commissioners argued, because with the exception of the initial 24 areas, the entire zone covered

by the concession would be open to multinational companies and individual foreign investors.175

Therefore, the Commissioners concluded that it was economically impossible to separate the

City of Mosul “from its natural hinterland” and that there was no direct trade between Mosul and

Turkey.176 Finally, they concluded that the two trade routes were Baghdad and the Persian Gulf,

as well as through Syria. Therefore, from the “purely economic” point of view, the report

recommended that Mosul be attached to the Iraqi state.

The Commissioner’s understanding of “the purely economic point of view” was precisely the

point of view of the multinational companies and foreign investors who would have access to

these zones. Yet, this issue was not a “purely” economic issue derived from the national

question, which was closely interconnected with the economy of the province. The Kurds

inhabited the same zones that would be divided among these oil companies. At the same time,

certain classes within Mosul and Iraq more broadly, specifically the ruling class and the

commercial class, would effectively receive a share of the pie.

172 Ibid. 173 Ibid. 174 Ibid. at 69. 175 Ibid. 176 Ibid.

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Re-locating Self-determination 5Whereas the Commissioners arrived in Mosul, anticipating that race and ethnicity would play a

central role in the lives of the inhabitants, as the interviews progressed, they realized that

questions of national identity were marginal and came out only when probed. With the exception

of the Kurdish question, the inquiry showed, perhaps unintentionally or self-consciously, that the

dispute was more multi-faceted and entailed managing various overlapping categories of identity

that could not be reduced to ethno-national categories. Out of approximately 740,000

inhabitants, the Commissioners interviewed a total of eight hundred people in Mosul.177 Despite

not holding a plebiscite, the Commissioners explained that they were able to ascertain the views

of the population on the future of Mosul from those interviews. They reiterated that the lists of

interviewees were of educated people and those who had some influence, such as notables who

had been members of the municipal councils during the last twenty years, religious heads,

property owners and those recommended by “influential persons”, and therefore they came from

the trusted social classes of the province.178

This was a running theme in the Commission’s report. The civilizational discourse was often

connected to a discourse specific to the semi-peripheral colonies: namely, not all people in the

region were backward, and there were certain classes who understood the importance of the

League’s intervention and were sufficiently advanced to cooperate. At the same time, the

Commission was suspicious of the genuineness of peoples’ declared identities, partly due to

peoples’ own reservations about the nature of the Commission’s intervention. It was even

initially accused of being a disguised government body.179 The Commissioners explained that

they were gradually able to gain the confidence of the population. They claimed to have slowly

gained knowledge of the social structure of the country and its relationship to peoples’ responses:

The social structure of the country had a remarkable influence on the attitude of many tribesmen and peasants. In a large number of cases they simply referred us to their tribal chiefs or to the owner of the village. For this reason we were obliged for the most part to apply to these persons

177 Ibid. at 75. 178 Ibid. at 75. 179 Ibid.

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because they represented a considerable number of people, but we could not always be sure that the wishes of the tribesmen or peasants were faithfully interpreted by their chief or landlord.180

Notable here is that there were other distinctions operating in Mosul. The Commission

understood there to be a quasi-feudal system: a peasantry segregated from the landed aristocracy

which informally controlled the governance of those areas. Yet the Commission avoided

acknowledging the socio-economic dimension of ethno-religious self-identifications. The

complete irrelevance of people’s ethno-national identity appeared most vividly in these

observations by the League’s Commissioners:

Several witnesses appear incapable of judging the question [of deciding whether Mosul should become under an Iraqi or a Turkish nation-state], of which, indeed, they had never heard; one person whom we asked said he wished to vote in the same way as two other persons whom he mentioned, though in point of fact these two persons had expressed opposite views. In other cases the influence of the propaganda carried on by certain authorities was indeed [sic] members of deputations who came to express their strong desire for inclusion in Iraq stated privately that they were convinced pro-Turks. ... In many cases the peasants said that they wished to be included in the same State as the capital of the liwa… Two or three witnesses gave as the reason of their support of Iraq the abolition of compulsory military service. Others favoured Iraq on the ground that the Iraq government must be the stronger because it had succeeded in occupying the country and that it was a good thing to belong to a stronger State.181

Furthermore, people who were classified as semi-educated had often made economic arguments,

similar to the ones widely propagated by the British government in the province, namely the

importance of trade with Baghdad.182 In one instance, a chief refused to answer a purely

economic question on the route used to export sheep, on the grounds that it was a political

question.183 Still, the Commission was able to sense how the Turks, Kurds and Arabs were

influenced by a growing national consciousness. While the Commission thought that these

sentiments were sincere enough, it saw that they were not always “the outcome of mature

reflection.”184

180 Ibid. 181 Ibid. at 76. 182 Ibid. 183 Ibid. 184 Ibid.

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It was in the predominately-Kurdish (approximately 99% of the population) provincial district of

Sulaimaniya that the most definite views were expressed.185 Union with Turkey was rejected,

and an economic union with Iraq affirmed. There was a strong sentiment in favour of Kurdish

local autonomy, specifically the use of the Kurdish language in education and the courts of law.

According to the Commission’s report, there was a general wish to retain British tutelage for a

long period.186 It noted that while the people expressed their vehement demands for complete

independence, “they recognized the advantages of an enlightened and intelligent trusteeship.”187

The Commissioners concluded, therefore, that it must have been the ability and good judgment

of the British administrators that had positively influenced the state of mind of the province’s

people.188 Only when one of the Kurdish provincial districts accepted the British position and its

tutelage, were the Kurds credited with good judgment and legal responsibility. These assertions

should clearly be taken with a grain of salt, given the evident correspondence between the

League’s predispositions and policies on the province and the general positions taken by the

British government.

In the Liwa (provincial district) of Kirkuk, opinions were less uniform and more complex. As

was the case in other districts, all Christians favoured union with Iraq under British tutelage.189

The Turks, with the exception of a small minority, were in favour of union with Turkey. When it

came to the Arabs and Kurds, the responses became a little unexpected and more complicated.

The Commissioners’ initial assumptions about the centrality of ethno-national identity in the

province confused the Commissioners when people’s declarations did not reflect their

preconceptions: “[i]t might be expected that most of the Arabs would prefer to join Iraq, but as a

matter of fact a large number of their statements were in favour of Turkey.”190 The Kurds gave

mixed responses; notably, the Kurdish chiefs wanted union with Iraq because they were directly

185 Ibid. 186 Ibid. 187 Ibid. 188 Ibid. 189 Ibid. at 77. 190 Ibid.

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receiving grants from the Iraqi government for road policing, while the majority of the other

Kurds in non-leadership positions expressed a pro-Turkish sentiment.191

In the Liwa of Mosul (predominantly Arabs, followed by Kurds), the majority of self-identified

Arabs interviewed were in favour of union with Iraq. Notably, most of the Arabs interviewed

were unequivocally against the continuation of the Mandate and called for the abrogation of the

Anglo-Iraqi Treaty.192 Otherwise, they would have preferred to be under Turkey rather than be

part of Iraq under British colonial administration.193 Arabs who were members of the City

Council and the Muslim religious heads were in favour of an Arab government. However, people

in the poorer classes exhibited strong anti-alien and anti-colonial sentiments, and were therefore

in favour of union with Turkey.194

While there was a clear association, stated explicitly by the Commission, between the opinions

expressed by the poorer classes and their anti-colonial sentiments, these associations did not

figure in the Commission’s assessment of the whole dispute. Although the Commission

consistently emphasized that its views would not be tainted by its close affinity with the British

positions, it did not question or investigate the fact that it was mostly the upper classes of

religious heads, landowners and tribal leaders of the different ethnicities that demanded Mosul’s

inclusion with Iraq under British tutelage. This failure was further complicated by the fact that

certain classes corresponded to certain ethnicities, which meant that the Commission of Inquiry

was not only lacking, but became an active agent in privileging certain classes over others and

ultimately deciding on the future of the province.

Outcomes of the Inquiry: Colonial Control, League 6Supervision and “Minority Protection”

The Commissioners concluded that there was no Iraqi national sentiment in the disputed

territory, except among semi-educated Arabs and in their case it was “an Arab feeling with

191 Ibid. 192 Ibid. 193 Ibid. 194 Ibid.

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chauvinistic and often anti-alien tendencies.”195 The Kurds exhibited a clear sense of a growing

Kurdish national consciousness, demanding local autonomy with the assistance of British

advisors. The pro-Iraqi positions that were taken in the province were mostly based on private or

community interests (that entailed economic considerations) as opposed to patriotism or

nationalism. The Commissioners conceded, that despite the assertions made by the British

government, nationality and language were not always reliable evidence of political views.196

The Commission found that the political future and final legal status of Mosul was related to

“non-identity” issues. Political and socio-economic issues were the primary concerns and

“[e]thnicity was clearly not the determining factor.”197 After visiting warehouses, bazaars and

markets, the Commissioners made their conclusions on the economic and commercial

environment of the province.198 Invoking the arguments of the British government, which were

rejected by the Turkish government, they found that the economic viability of Baghdad and

Basra was mostly dependent on the grain from the north (Mosul).199 The Turkish government

had argued that the alleged economic indivisibility between Mosul and the rest of Iraq had not

been an obstacle previously when Britain and France had agreed on the Sykes-Picot agreement,

which had separated the disputed territory from Baghdad and Basra.200 Nonetheless, the

Commission did not engage extensively with this question and eventually summarized the

outcome of its inquiry as follows:

. . The fact seems to be established that, taking the territory as a whole, the desires expressed by the population are more in favour of Iraq than of Turkey. It must, however, be realized that the attitude of most of the people was influenced by the desire for effective support under the mandate, and by economic considerations, rather than by any feeling of solidarity

195 Ibid. at 78. 196 Ibid. 197 Sarah Shields, “Mosul Questions: Economy, Identity and Annexations” in Reeva Spector Simon and Eleanor H. Tejirian, eds. The Creation of Iraq: 1914-1922 (New York: Colombia University Press, 2004) at 55. 198 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 13. 199 Frontier Between Turkey and Iraq: Letter and Memorandum from the Turkish Government, dated September 5, 1924, and the accompanying memorandum, Memorandum From the Turkish Government Regarding the Frontier Between Turkey and Iraq, September 16, 1924, C.494, 1924.VII. League of Nations Archives, at 9; Shields, “Mosul Questions: Economy, Identity and Annexations”, supra note 197 at 57. 200 Ibid. at 10.

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with the Arab kingdom; if these two factors had carried no weight with the persons consulted, it is probable that the majority of them would have preferred to return to Turkey rather than to be attached to Iraq.201

Eventually, the Commission recommended that Mosul be part of Iraq, but only if British tutelage

were extended for twenty-five years and the Kurds have official representation in the

administration, education and judicial institutions in the region, with Kurdish language as the

designated language for these services. The Commission noted that if the British mandate were

to expire in four years (as was initially envisioned), and if certain guarantees were not provided

for the Kurds, the majority of the people would have preferred Turkish to Arab sovereignty.202

And in doing so, the Commission made the Kurds an official minority in the new Iraqi state and

used their protection as a ground for extending the mandate in Iraq.

In eliciting national desires of the population of Mosul, the Commission sought a certain ethno-

national idea of self-determination, which proved to be increasingly confusing and

challenging.203 Most people had little or no experience with either the Iraqi or the Turkish state,

and the idea of choosing between being an “Iraqi” or a “Turk” evoked a meaningless concept.204

Eventually, the Commission allocated “relative value” to each of the factors to reach the opinion

that important economic and geographical arguments and the sentiments of the majority of the

inhabitants operated in favour of a union with Iraq, subject to the following conditions:

(1) The territory must be under the tutelage of the mandate of the League of Nations for twenty-five years.205

(2) The desires of the of the “Kurdish race” must be put into consideration, namely the appointment of Kurds in public administration, the legal and justice systems, educational institutions, and that Kurdish should be the official language in all public matters and institutions.206

201 Anthony D’Amato, International Law and Political Reality (The Hague: Martinus Nijhoff Publishers, 1995) at 348. 202 Ibid. 203 Sarah Shields, Mosul Before Iraq: Like Bees Making Five-Sided Cells (Albany: State University of New York Press, 2000) at 190. 204 Ibid. 205 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 88. 206 Ibid. at 89.

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(3) Whatever the decision of the Council of the League of Nations, the Commission recommended that it was essential that Iraq retain the Diala region, which was necessary to resolve its irrigation problem.207

The Commission thus recommended that Mosul become part of Iraq. It also stipulated a minority

protection clause, although the Kurds constituted the overwhelming majority of the province’s

population and had generally demanded (with some exceptions) Kurdish local autonomy. The

question of minority protection had been used by the Commission on various other occasions to

either extend colonial control or stipulate the League’s supervision. Notwithstanding “the good

intentions” of the “politically inexperienced” Iraqi statesmen, the Commissioners found, there

were serious rifts between the Shiites of the South and the Sunnites of the North, along with

racial differences between Arabs and Kurds.208 Furthermore, there was the additional task of

trying to pacify “turbulent tribes” and bring them under control.209

The dispute was further exacerbated in 1925 when Turkish regulars engaged in military activities

at the Mosul frontier, creating thousands of Chaldean Catholic refugees who fled southward

towards the British sphere of influence. Britain, for its part, carried out a number of naval

manoeuvres on the northeastern maritime borders. Again, the question of minority protection and

the alleged Muslim-Christian divide were presented as an additional reason for awarding Mosul

to the British Mandate, since the safety of Christians was at stake. The British government sent a

letter to the Secretary General of the League of Nations demanding an investigation by the

League into the matter of Christian deportations by the Turkish military and the violation of the

status quo determined by the Brussels Line and confirmed by Article 3 of the Treaty of

Lausanne.210

In the predominantly Sunni Muslim Kurdish area of Mosul, Turkey was allegedly spreading anti-

Christian statements and, by association, anti-British sentiments. One leaflet read: “[b]efore long

your ears will be deafened by the sound of the bell – the voice of the mu’ezzin will no longer be

207 Ibid. 208 Ibid. at 88. 209 Ibid. 210 Frontier Between Turkey and Irak: Letter from the British Government, League of Nations, C.539.1925.VII (September 15, 1925) League of Nations Archives.

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heard. Christian officials will treat you as did the Russians, and you will have to kiss the feet of

the Arabs and Chaldeans.”211 At the same time, Christian priests were sending letters to the

British government in the hope that Britain would communicate their messages to the League of

Nations: “In the name of humanity we ask you to [intervene] on our behalf before the Liberator

of peoples the League of Nations. … Help us in name of right and justice for Christians of

Goyan are being slaughtered.”212 All these incidents further supported the Commission’s

position that the mandate should be extended for another twenty-five years. Any mismanagement

of the ethnic, racial, religious and sectarian divides, the Commission argued, could be fatal to the

very existence Iraq, if it were to be become immediately independent without the guidance and

support of the Mandate authority.213 Minority protection, therefore, was a tool for extending

colonial control and the League’s institutional supervision over Iraq’s political life.

The Commission was impelled to extend its mandate and give three additional “special

recommendations” to supplement the final conclusions of its inquiry. The first of those special

recommendations was curbing the “popular passions” that had sparked some violence since the

Treaty of Lausanne.214 The Commission’s inquiries “by their very nature” had also helped “to

excite the minds of the people,” who were already enthused by nationalist propaganda by both

sides in anticipation of the arrival of the League’s Commissioners.215

Similar to the Alexandretta dispute, like a “hall of mirrors” the questions of the League’s

Commission of Inquiry forced residents of the province to conceive of themselves in certain

ethno-national terms. Therefore, it fused “ethnic authenticity” to the process of democratic self-

211 Atarodi, supra note 13 at 155, n.3. 212 Telegram from the British High Commissioner, Baghdad, League of Nations, C.546.1925.VII, (September 16, 1925). As a consequence of allegations of Turkish attacks on Christians, the Council of the League of Nations adopted a resolution creating yet another five-member Commission to investigate the situation at the frontier, led by General F. Laidoner on October 30, 1925. The Laidoner Commission, while condemning the attacks directed against the Christians, eventually found that the events that took place near the frontier were merely ordinary incidents that were inevitable given the indeterminate situation at the border. See Laidoner, F. Report to the Council of the League of Nations on the Situation in the Locality of the Provisional Line of the Frontier between Turkey and Irak Fixed at Brussels on October 29, 1924 (London: H. M. Stationery Office, 1925) League of Nations Archives. 213 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 88. 214 Ibid. 215 Ibid.

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determination in Mosul. Even the Commission’s report noted that the inquiry process entailed

“exciting the minds of the people”. But compared to Alexandretta, this effect of creating what

was reflected, was not as pronounced in framing people’s preferences. The point in the Mosul

case is the League’s framing of the dispute in those terms. The inconsistencies between its

preconceptions about the force of ethnicity and national identity and the responses of Mosul

residents meant that the Commission would need further state protections to control the

population.

Convinced that the vast majority of the population believed that the Commission had conducted

an absolutely impartial inquiry and would therefore accept whatever decision they took, the

Commission requested that the state aim to “pacify the people” and give amnesty for all previous

actions by the inhabitants.216 The Commission, in fact, recommended that the League of Nations

should appoint a special representative to reside in the territory for several years. He would

receive complaints from the inhabitants who regarding grievances or persecution by the local

authorities.217 Thus, the extension of the Mandate would also expand its responsibilities to

include hiring permanent League staff who would assume wide powers of supervision and

governance in the province.

The second “special recommendation” reiterated what was evidently important for the

Commission: the protection of non-Muslim minorities. The Christians, Yezidis and Jews would

be protected as recognized minorities of the Muslim state of Iraq.218 This would entail some form

of local autonomy for minorities such as the Assyrians and religious freedom and the right to

open religious schools for Christians and Yezidis. However, these protections, the

Commissioners argued, would remain “a dead letter” if no competent supervision were exercised

by the League of Nations representative.219 In reality, these categories corresponded to multiple

identities. The Yezidis were also Kurds, as were some Jews and Christians. The League’s

minority protections scheme in the province reshuffled identities in favour of a new notion of an

216 Ibid. 217 Ibid. 218 Ibid. at 90. 219 Ibid.

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Iraqi citizenship, which would be monitored and controlled by the League and the British

Mandate. Similar arrangements were made in the post-Ottoman region, especially for the

Armenian refugees whose future and communal survival as “minorities” became directly linked

to the protection of the League of Nations.220

The third and final special recommendation of the Commission concerned commercial matters.

Essentially, all commercial outlets of the territory should be secured to whichever power held

sovereignty over Mosul. Iraq and Turkey should ensure freedom of trade for import and

export.221 Effectively, however, Mosul’s merchants could no longer easily move between the

neighbouring provinces, as had been the case throughout the nineteenth century. Mosul’s urban

workers and peasantry could no longer enter as migrant workers. And the mobility of Mosul’s

products was severely hampered by the new borders with Syria and Turkey. When crossing the

new borders, “merchants became “smugglers,” labourers became “refugees,” and goods became

“contraband.”222

In Geneva, at the final negotiating session at the Council of the League, L.S. Amery, the British

Colonial Secretary and Munir Bey, the Turkish jurist and Minister in Bern presented their

positions. The British Government, confident of a favourable outcome, declared its willingness

to accept the decision by the Council. Turkey rejected the Council’s legitimacy. After the

League’s dismissal of the Turkish rejection, Turkey withdrew and the Council awarded most of

the Mosul wilayet to the British Mandate of Iraq, adopting the Brussels Line as the official

frontier between Turkey and protected Iraq.223 The Anglo-Iraqi Treaty was ratified in the British

and Iraqi national assemblies. The official transfer of the wilayet of Mosul was on March 11,

220 Keith David Watenpaugh, “Between Communal Survival and the National Aspiration: Armenian Genocide Refugees, the League of Nations and the Practices of Interwar Humanitarianism” (2014) 5:2 Humanity 159 at 159, 168, 169. Unlike the Kurds in Iraq, the Armenian refugees effectively became stateless at a time when minority rights and rights more broadly became directly linked to modern citizenship, precisely the kind of Iraqi citizenship nurtured by the League. Therefore, the solution for the Armenians was the elusive Nansen Passport (named for Fridtjof Nansen, the League’s High Commissioner for Refugees). 221 Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30, 1924, supra note 1 at 90. 222 Shields, Mosul Before Iraq, supra note 203 at 190. 223 Notably, Amery expressed discontent regarding the Council’s decision to exclude the southern portion of the wilayet of Hakari with its Christian population in the boundaries of Iraq. Nevertheless, he accepted the decision. Atarodi, supra note 13 at 203.

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1926. Turkey, recognizing the situation, decided to settle the issue and eventually signed a

tripartite agreement between with Britain and Iraq in June 1926.

The text of the Anglo-Iraqi treaty made no reference to self-determination or to the will of the

people, referring simply to the question of independence in the context of membership in the

League of Nations.224 Over the course of the League’s management of the dispute, the discourse

had been fundamentally transformed. The initial process entailed a strong commitment to the

principle of self-determination. Indeed the League of Nations’ intervention and the appointed

Commission of Inquiry were responsible for realizing this goal and determining the will of the

people on the future of Mosul.

While the League’s discourse changed throughout the process, it remained consistent in its lack

of any commitment to a Kurdish national home, despite its own statements on the significance of

the national Kurdish question. That much is well known, however what I found novel was the

League’s view of Kurds as “outlaws” or “rebels”. The omission of a potential Kurdish state from

the Commissioners’ report effectively meant support for the British project of building an Iraqi

nation-state. This also created new majorities and minorities in a way that could sustain the old

mandate tutelage, as well as new foreign capital adventures in the oil fields. Despite the fact that

the Commission was physically in Iraq investigating the conditions on the ground when the oil

concession deals were being signed, the Commissioners chose not to include questions of

territorial sovereignty and control over natural resources by the indigenous population directly in

the inquiry.225 The League’s intervention in Mosul developed from a self-determination project

largely concerned with nation-building to a neo-colonial project of continued tutelage and

building a new Iraqi state that would cooperate with the various extraction projects planned for

Mosul’s oil fields. The inquiry’s language of racial determination, confession and declaration of

ethnic identity not only obscured the corresponding class distinctions and made assumptions

224 Treaty Between His Britannic Majesty and His Majesty the King of Iraq, January 1926, 7 LNOJ 550. 225 Permanent sovereignty over natural resources became an important aspect of self-determination after the adoption of the UN Declaration on the Permanent Sovereignty over Natural Resources in 1962. See Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII), UNGAOR (1962). For a critique of the uses of the discourses of self-determination and permanent sovereignty over natural resources, see generally Antony Anghie, “‘The Heart of My Home’: Colonialism, Environmental Damage, and the Nauru Case” (1993) 34:2 Harv. Int’l L.J. 445.

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about political preferences, but also masked the race between imperial powers and local elites for

Mosul’s oil fields as merely another project that happened to coincide with the League’s

intervention in the province.

This chapter has sought to show that the League’s intervention was not only about creating a

national state that was economically viable, but creating one that would facilitate the flow of

international capital and open its doors to European and American investments, particularly in

the oil fields. Accordingly, it was Iraqi and not Kurdish nationalism that was eventually

supported by the League-appointed Commission of Inquiry. Sometimes relying on dubious

accounts of travellers of the Orient or following the witty lawyering of the British representatives

to the Council of the League of Nations, and at other times relying on their brief interviews held

with only 0.1 percent of the total population of Mosul, the Commission nonetheless saw itself as

conducting a comprehensive study of the real origins of the different races of the people of

Mosul. However, the League’s nation- and state-building projects in Iraq concealed the

ubiquitous power dynamics of capital.

In sum, a dispute that initially appeared as one more case of interwar ethnic self-determination,

combined with the assumptions about the civilized and the uncivilized commonly applied to the

Mandate territories, in fact entailed several economic layers that I unearthed through archival

research. While ethnic self-determination and the standard of civilization were quite present in

the dispute, the underlying struggle over capital came into view through reading the archive in

the social context of Mosul at the time of the Commission of Inquiry’s visit. National self-

determination and capital accumulation were revealed as interdependent and mutually

constitutive in the League of Nations’ project of Iraqi nation-building in Mosul.

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Chapter 4 Reading Class Subjectivity in International Law and Its Institutions

Through the ILO’s Technical Assistance Mission in Inter-War Egypt

This final case study examines the question of class subjectivity in international law by focusing

on Egypt’s relationship with the International Labour Organization (ILO) during the interwar

period. It centers on the ILO’s 1932 technical assistance mission to Egypt, prior to its admission

to the Organization in 1936. The context it develops is that of the ILO’s relationship to the

colonial presence in Egypt, including the Egyptian/hybrid colonial legal structure of the Mixed

Courts and the Capitulations regime. Although in principle the ILO was concerned with “class”

whereas the League of Nations organized its interventions through some concept of “nation”, the

ILO - like the League in Alexandretta and Mosul - was engaged in a nation-building project. Its

approach to labour law reform was technical and apolitical, geared toward Egypt’s membership

in the Organization as an “independent” nation-state. Although not a League of Nations Class A

Mandate like Iraq, Syria and Palestine, Egypt had a similar semi-colonial status in international

law, and this case study therefore similarly illuminates the extent of agency and resistance

enabled by the use of international law and its institutions and other specifically illegal or extra-

legal tactics.

Using a micro politics approach, I trace the relationships between the main protagonists in the

ILO’s intervention, tracking the uses of international and domestic labour law and of the

international legal institutional structure (of the ILO) by the Egyptian Labour Office and the ILO

respectively. Furthermore, the case study centers on the recognition of class as a distinct subject

of concern for international law in the context of a debilitated “semi-colonial” Egyptian state.1

The ILO’s archive tells the story of a top-down transformation of labour policy: it depicts reform

of labour law in Egypt as a function of the close relationship between Harold Butler, the Director

of the ILO and R. M. Graves, (the British) Director of the Egyptian Labour Office, which was

manifested in their joint quest for social reform. Absent from the ILO’s archive is that the

1 Zachary Lockman, “British Policy Toward Egyptian Labor Activism, 1882-1936” (1988) 20: 3 Int’l J. Middle E. Stud. 265 at 270.

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interwar period in Egypt starting in 1918 saw a massive resurgence in labour militancy,

including the organization of trade unions, strikes and direct political action, which was

instrumental in driving government policy and put pressure on the ILO to legitimate its presence

in Egypt. This story is absent from the official records of the ILO. Through the protagonists, I

look at what made it to the official ILO records, as distinct from references in letters, various

types of correspondence and other documents not included in the main debates of the ILO’s

official sessions. In this sense, I read the archive against itself. This method also involves reading

the archive against large agitation campaigns against the colonial presence and the tyranny of the

bosses in large industrial and commercial enterprises, events that left no obvious trace in the

archive.

In the story that can be reconstructed from the ILO’s archive in Geneva, the main protagonists

were Butler, Graves and Sidqi Pasha, a notable industrialist and leading Egyptian official. The

secondary characters were the Egyptian trade unionists and the working class. Graves was a

distinguished British colonial officer in 1930s Egypt. Initially, he was a deputy at the British-run

Department of the Egyptian Ministry of Interior in Cairo, and later he became the designated

expert on Egyptian labour affairs.2 Graves effectively became the main, if not the only, link

between Egypt and the International Labour Organization (ILO). He represented an ideology that

denied the existence of class struggle in society and preached the formation of apolitical unions.3

Graves’s main policy was containing labour militancy through labour legislation and the legal

recognition of trade unions. He was a staunch anti-nationalist, or more specifically, he was

against the nationalism of the Wafd Party. The “Wafd” was the Arabic word for “delegation”.

The party was formed as the delegation to the 1919 Paris Peace Conference to lobby for

complete independence. Its leadership was comprised of landowners and educated professionals,

but it had a large popular base. It was a secular, liberal, nationalist party it played a central role in

Egyptian politics throughout the interwar period. Graves was hoping to avoid “Wafdist

hegemony” over the workers’ movement.4 He was also a committed anti-socialist. Through

2 Ibid. at 277. 3 See Joel Beinin & Zacharay Lockman, Workers on the Nile: Nationalism, Communism, Islam, and the Egyptian Working Class, 1882-1954 (Cairo: American University in Cairo Press, 1998) at 7. 4 Abdelslam Maghraoui, Liberalism Without Democracy: Nationhood and Citizenship in Egypt, 1922-1936 (Durham: Duke University Press, 2006) at 127. See also, Marius Deeb, Party Politics in Egypt: the Wafd and Its

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labour legislation, he argued, Egyptian workers could avoid the threat of Bolshevism. He worked

for a “well-ordered and non-political trade union movement.”5 This policy made him the focal

point on Egyptian labour affairs for the ILO, as well as for Prime Minister Ismai’l Sidqi Pasha.6

Sidqi Pasha had been the “strongman” of the viciously anti-labour Ziwar Pasha government

(1924-1926). He was relied on to crush the Wafd and continue with a British-backed

authoritarian regime that was friendly to the palace. He became one of the top leaders of the

Egyptian Federation of Industries (EFI), which was founded in 1921 from several hundred large

foreign and mutamassir companies in response to a Wafdist initiative to counter the unrelenting

workers’ agitation to institute new labour legislation.7 The EFI’s slogan was L’Egypte

Industrielle or Misr al-Sina’iyya, warning the Egyptian public “that most of the provisions of

these laws could not be applied in Egypt, because they presuppose a different degree of

economic and social evolution.”8 The industrialization of Egypt ought to be the government’s

main priority as opposed to burdening the industrialists with more unnecessary labour-related

costs.9 Prime Minister Sidqi Pasha always had the EFI’s main goals in mind in designing his

industrial and labour policy. In June 1930 after the Wafd government had failed again to

negotiate a treaty with Britain, the party was ousted from power, and the British-backed King

Fu’ad managed to install Isma’il Sidqi Pasha as the new prime minister.10 Within a few months

of his premiership, Sidqi Pasha cancelled the 1923 constitution and replaced it with a new one,

which effectively gave voting powers only to intellectuals and the middle and upper class of

landowners. He also disbanded the Confederation of Trade Unions, founded in 1930 by the well-

Rivals 1919-1939 (Oxford: St. Antony’s Middle East Monographs, No. 9, Ithaca Press for the Middle East Centre, St. Antony’s College, Oxford, 1979). 5 Beinin & Lockman, Workers on the Nile, supra note 3 at 279. 6 Isma’il Sidqi Pasha was the Prime Minister of Egypt (June 1930-September 1933). He founded the Shaab Party (People’s Party). 7 Mutamassir means Egyptianized foreign capitalists. 8 Joel Beinin & Zachary Lockman, Workers on the Nile, supra note 3 at 184. 9 Ibid. 10 Ibid. at 193.

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known Wafdist, Aziz Mirham.11 However, Sidqi Pasha, unlike others within his social class,

understood the growing importance of the newly emerging working class in Egypt. He

immediately established a new Labour Office and appointed Graves as its Director, who was

then working in the British-led security apparatus in Egypt.12 Through this appointment, Graves

became the ILO’s main contact person and the representative of the Egyptian Labour Office in

the eyes of the Organization. Throughout his tenure, he accumulated a wealth of knowledge and

developed a succinct colonial labour policy. When his position in Egypt became untenable due to

the increasing Egyptianization of the higher levels of the bureaucracy after World War I and he

failed to get a “Geneva job” with one of the international institutions there, he was moved to

Mandated Palestine to continue the colonial, corporatist labour legacy.13

The Labour Office was established as part of the Department of Security in the Egyptian

Ministry of Interior. This was consistent with the tradition of treating labour as a police and

security matter.14 This also explained the Office’s initial prejudice against dealing with the

syndicates since they were generally seen as a potential security threat. It was, however, tasked

with ensuring that organized workers proceeded on industrial, as opposed to political, lines to

prevent their exploitation by political factions for “subversive purposes”.15 This coincided with

Graves’s main line, which he persuasively pitched to the ILO and its Director, Harold Butler.

Harold Butler was a British civil servant and a central figure in the preparatory work that led to

the creation of the ILO in 1919. He became the Organization’s first Deputy Director under the

11 Raouf Abbas, “Labour Movement in Egypt: 1899-1952” (March 1973) I:1 Dev. Econ. 62 at 68. 12 Zachary Lockman, Comrades and Enemies: Arab and Jewish Workers in Palestine, 1906-1948 (Berkley: University of California Press, 1996) at 283. 13 Graves writing to the British Embassy in Egypt: “[M]y positions as executive head of the Labour Department is rapidly becoming untenable, but in view of the important political issues involved, I do not wish to create an unwelcome situation by resigning my post before explaining my difficulties to the Embassy.” R. M. Graves, Note to the British Embassy: The Egyptian Government’s attitude Toward Labour (1938) ILO Archives at 10. See also Lockman, Comrades and Enemies, supra note 12 at 283. 14 Confidential: Report of the Organization of the Labour Department (1931) ILO Archives at 2. 15 Ibid. at 10.

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leadership of Albert Thomas.16 Butler later became the Director, after the death of Thomas in

1932, slightly changing the organization’s political outlook: he was known to be “the one with

the cold feet” and was always compared to the more influential Thomas.17 Thomas’s

appointment as the first director of the ILO was secured by the efforts of European trade union

leaders. He was a socialist with nationalist and reformist inclinations.18 Butler, on the other hand,

was a pragmatist. He was seen as “more impartial and less dogmatic” and more susceptible to

understand the functioning of government bureaucracies. Typical categories associated with

working class politics, such as “class struggle,” were explicitly rejected by Butler, which was

also partly a rejection of Thomas’s declared political positions.19 For example, in his book The

Lost Peace, he proclaimed that class struggle was not a serious issue in Britain because the

wealthy had made “great concessions with good grace” and the labour and liberal factions were

not too forceful.20 This was conveniently consistent with the Allies’ initial motives for creating

an international labour institution after World War I, namely the fear of post-war social conflict,

protecting Western Europe from the revolutionary tide coming from the East, and the need for a

concerted joint effort to deter these threats. In short, the “ILO was Versailles’s answer to

Bolshevism.”21 Butler was to pursue the ILO’s mission of social reform through labour

legislation and technical assistance missions in the face of labour militancy and workers’

collective participation in politics.

Graves understood the ILO’s larger concerns and followed suit. He worked very closely with

Butler and Stephen Lawford Childs who was in the Director’s Cabinet of the ILO throughout the

1930s. Graves represented British colonial labour policy, conceptually and institutionally, and

the interests of the industrialists (owing to his close relationship with Sidqi Pasha and the EFI),

16 “Harold Butler: Directeur Général de l'Organisation internationale du Travail, 1932-1938,” (2006) International Labour Organization website, available at: http://www.ilo.org/global/about-the-ilo/who-we-are/ilo-director-general/former-directors-general/WCMS_192737/lang--fr/index.htm 17 Interview with the head of the ILO Archives, M. Remo Becci, ILO headquarters, Geneva (June 2012). 18 Robert W. Cox, “ILO: Limited Monarchy,” in Robert W. Cox and Harold K. Jacobson, eds. The Anatomy of Influence: Decision Making in International Organization (New Haven: Yale University Press, 1973) at 103. 19 Francis Graham Wilson, Labor in the League System: A Study of the International Labor Organization in Relation to International Administration (Stanford: Stanford University Press, 1934) at 335. 20 Harold Butler, The Lost Peace: A Personal Impression (New York: Harcourt, Brace and Co., 1942) at 66. 21 Cox, “ILO: Limited Monarchy,” supra note 18 at 102.

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and became a strong supporter of the international legal regulation of labour in Egypt through the

ILO.

Colonial labour policy often entailed the appointment of British directors to labour departments

in British dependencies. In 1942, the House of Commons consolidated this policy through the

creation of the Colonial Labour Advisory Committee.22 This Committee included members

closely associated with the ILO. Major Orde Brown and Mr. Hibbert, for example, had been the

advisors to the British Government during the colonial deliberations at the International Labour

Conference.23 Starting 1942, the British government made a series of appointments across the

periphery, including in British Guiana, Nigeria, Trinidad and notably in Palestine, where Graves

was appointed after being forced to leave office in Egypt.24 When Graves moved to head the

Labour Department in Palestine, he expanded this policy with new recommendations that

entailed a more interventionist approach to domestic labour policy. He recommended hiring

additional “expert staff” to help formulate a technical approach to labour reform.25

Through tracing the relationships and policies of these main protagonists and heroes of the ILO

archives – R. M. Graves, Sidqi Pasha and Harold Butler – this chapter studies the micro politics

of the ILO’s intervention in 1930s Egypt. I first discuss the international legal implications of

Egypt’s semi-colonial situation, namely its “protectorate” status until 1922 and later its semi-

autonomous status until the Anglo-Egyptian Treaty of 1936 and beyond (a status which

continued until the 1952 coup led by the Free Officers).26 Second, I locate the ILO’s technical

assistance mission within the larger political and legal context of interwar Egypt by isolating

important moments in the prelude to the mission, namely the Wafd orchestrated Rida

Commission in 1927 and the International Federation of Trade Unions’ mission led by Walter

22 “Social and Economic Policy” (1942) 46 Int’l Lab. Rev. 55 at 61. 23 Ibid. 24 Ibid. at 62. 25 Ibid. 26 The Free Officers were a group of young officers in the Egyptian army, who on July 22, 1952 seized power through a coup d’état against the monarchy. They took control of the main military bases and the radio networks, through which Anwar El Sadat, then a member of the Free Officers, announced the coup, and thus ended the institution that dated as far back as Mohamed Ali (1769-1849). See Robert L. Tignor, Egypt: A Short History (Princeton: Princeton University Press, 2010) at 256.

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Schevenels in 1931. Third, I present the details of the ILO mission to Egypt, which was aimed at

restructuring the country’s labour law regime. I conclude by evaluating the ILO’s role in 1930s

Egypt, arguing that the “success” of the intervention (in the eyes of the ILO itself) hinged upon

creating a new labour law system that would not only please the industrialists by tempering

labour militancy, but would correspond with the ILO’s own policy of workers’ containment.

Thus, when “class” became a subject of concern in international law, the working class’s self-

activity was contained, not emancipated, through law.

The Road to a Semi-Colonial Political and Legal 1Order in Egypt

Egypt’s legal status had been a question of debate among British and particularly Egyptian legal

scholars since the British occupation of Egypt in 1882. In fact, this question also created a lively

debate among international law scholars as to whether Egypt was a “vassal state” or a “semi-

sovereign state”—the latter being marginally more autonomous than the former.27 Egypt was

considered sui generis: it was legally under the aegis of the Ottoman Empire, but it was militarily

occupied and all its civil administration and international relations functions were transferred to

the occupying power, Britain.

Egypt’s semi-colonial status is important for the story of the ILO’s intervention in several ways.

First, Egypt’s status enabled the relationship between the different protagonists. Graves acted as

the official “indigenous” representative of Egyptian labour affairs in the eyes of the ILO,

communicating with both the British colonial administration in Egypt and the Egyptian

industrialist class. Second, Egypt’s semi-colonial status illuminates the ILO’s relationship with

colonial legal cultures through not only the ILO’s colonial labour policy, but also its

accommodation of the Mixed Courts and the Capitulations regime in Egypt, as will be discussed

below. Therefore, the ILO’s intervention in Egypt is both an international law story and a hybrid

story about international and national law. Third, it highlights a number of similarities with Class

A Mandates through which we can draw broader conclusions about the degree of agency of the

27 Malcolm McIlwraith, “The Declaration of a Protectorate in Egypt and Its Legal Effects” (1917) 17:1 J. Soc. Comp. Legis. N.s. 238 at 249.

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semi-periphery. In what follows, I track the history of the development of Egypt’s semi-colonial

status in a way that illuminates these three main themes.

In 1914, after thirty-five years of illegal administration, just after the outbreak of World War I,

the British government unilaterally proclaimed Egypt a British Protectorate, announcing the

termination of Turkish suzerainty. The proclamation of a protectorate gave Britain the legal

power to depose the Khedive and install a new Sultan who would cooperate with the British

colonial administration in Egypt and support its interests overseas.28 Britain also acquired the

ability to postpone the annulment of the Capitulations regime, a set of laws that conferred rights

and privileges on foreign subjects residing or trading in the Ottoman dominions.29 The

capitulatory legal system gave foreign consulates wide jurisdictional powers, exempting their

subjects from taxes and enabling migration and trans-Mediterranean capital flows.30 The

Egyptian Mixed Courts played a similar role vis-á-vis the judiciary. Claiming the inapplicability

of Islamic Law to a modern capitalist society, the British, through the Egyptian leadership,

established the Mixed Courts to introduce European law into the Egyptian legal and judicial

structures. The Mixed Courts still derived their authority from the domestic legal system, but

regulated disputes between local and foreign residents based on the French civil code and British

common law, distinct from both the Egyptian and these foreign legal systems.31

Despite these legal interventions into Egypt’s domestic affairs, the country was officially

“independent”. Nevertheless, similar to the mandate regimes later instituted by the League of

Nations in other territories, the British government declared the following:

28 “His Britannic Majesty's Secretary of State for Foreign Affairs gives notice that, in view of the action of His Highness Abbas Hilmi Pasha, lately Khedive of Egypt, who has adhered to the King's enemies, His Majesty's Government have seen fit to depose him from the Khediviate, and that high dignity has been offered, with the title of Sultan of Egypt, to His Highness Prince Hussein Kamel Pasha, eldest living Prince of the family of Mohammed Ali, and has been accepted by him.” Ibid. at 238. 29 Ibid. Ziad Fahmy, “Jurisdictional Borderlands: Extraterritoriality and “Legal Chameleons” in Precolonial Alexandria, 1840-1870” (2013) 55:2 Comp. Stud. Soc. Hist. 305 at 312. 30 Ibid. 31 Amr Shalakany, “Arbitration and the Third World: A Plea for Reassessing Bias under the Specter of Neoliberalism” (2000) 41:2 Harv. Int’l L. J. 419 at 431-433.

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…[W]hile working through and in the closest association with the constituted Egyptian authorities, to secure individual liberty, to promote the spread of education, to further the development of the natural resources of the country, and, in such measure as the degree of enlightenment of public opinion may permit, to associate the governed in the task of government. … Great Britain's position in the country will accelerate progress towards self-government.32

Notably, the declaration of the protectorate, unlike Class B and C Mandate treaties, did not

mention labour as a question of social policy or the administration of labour more broadly. The

Permanent Mandates Commission (PMC), for example, prepared a list of questions for the

Mandatory Powers governing Class B and C Mandates.33 The section on labour conditions

included detailed questions on the measures taken to implement the recommendations of the

International Labour Conference, local supply of labour, physical power and resistance, aptitude

to work as “conducted along modern lines”, domestic labour laws, hours of work, nationality of

“imported workers” and the role of trade unions, among many other questions.34 Article 4 (3) of

the Mandate treaty for Togoland (Class B), for example, specifically prohibited all forms of

forced and compulsory labour “except for essential public works and services.”35 The Mandate

treaty for Syria and the Lebanon (Class A), on the other hand, made no reference to any labour

provisions or obligations of the Mandatory Power.36

Class A Mandates in Iraq and Syria had a very similar status and system of administration to the

Protectorate in Egypt. In fact, the Milner Commission sent to Egypt in 1919 argued for the

creation of a Mandate for Egypt. The question whether Egypt would be granted a Class A, B, or

C mandate was not adequately explored, although it was implied that a Class A mandate would

be the most logical choice.37 The intention was to create a temporary tutelage system that would

32 McIlwraith, supra note 27 at 239. 33 “Annex 899b, B and C Mandates: List of Questions which the Permanent Mandates Commission Desires Should be Dealt with in the Annual Reports of the Mandatory Powers, submitted to the Council September 3, 1926” (1926) 7 LNOJ 1248 at 1325. 34 Ibid. See also Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004) at 153. 35 The French Mandate for Togoland, August 1922, (1923) 17:3 AJIL 190, Supp. 36 The French Mandate for Syria and the Lebanon, July 1923, (1923) 17:3 AJIL, Supp. 177. 37 Letter from E.P. to “Bob” on the question of a mandate for Egypt as expressed in Alfred Milner’s letter, Sutherland House, Curzon Street (6 November, 1991) League of Nations Archives. After major anti-colonial protests in Egypt, Lord Alfred Milner headed a commission to Egypt (1919-1920), which recommended a certain form of self-governance that was rejected by the British government. His main idea was that this form of self-

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manage the details of social policy, including labour policy, as well as macro-politics through

control over the security system, foreign policy and economic restructuring.

By 1919, national resistance to the British occupation and its control of Egypt’s civil

administration had reached its height. This coincided with the rebirth of a strong working class

movement toward the end of 1918 and beginning of 1919. Working class activism and

organization had become central features of Egypt’s political life, including its nationalist

movement. With the end of the war, the question of Egypt’s claim to full independence came to

the fore. As delegates were preparing to convene in Paris for the Peace Conference, a group of

nationalist politicians and notables, mostly from the Wafd Party, put together a delegation to

attend the Peace Conference under the leadership of Sa’d Zaghloul Pasha. The delegation was to

demand Egypt’s right to complete independence.38 Sa’d Zaghloul sent a commendatory telegram

to US President Woodrow Wilson asking for his support in the Egyptian struggle for self-

determination:

To the great and venerated President who led the people of the United States in their disinterested participation in the European conflict to save humanity and to preserve the world in the future from the horrors of war, we send out affectionate greetings. To the eminent philosopher and statesman who occupies today a preponderant place among the leaders of peoples, and whose high ideals are imposing themselves upon statesmen of all nations, we offer our homage and admiration. To the chief of the great American democracy, who left his country in order to bring about a durable peace based on equal justice for all and guaranteed by the Society of Nations, we submit the cause of Egypt, which is subjugated to a foreign domination that Egypt unanimously rejects. Long live the United States! Long live President Wilson! 39

Despite these calls, the British government prevented the delegation from traveling to Europe

and it arrested the nationalist leader Zaghloul and deported him to Malta. Revealing the

intersection of anti-colonial nationalism with class politics, this incident triggered a backlash in

government would function like the Mandate system, but would be a “mandate from the people.” See Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (New York & London: Verso, 2011) at 98-100. 38 Beinin & Lockman, Workers on the Nile, supra note 3 at 88. See also, Israel Gershoni & James P. Jankowski, Egypt, Islam and the Arabs: The Search for Egyptian Nationhood, 1900-1930 (New York: Oxford University Press, 1986) at 40-43. 39 Erez Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anti-Colonial Nationalism (Oxford: Oxford University Press, 2007) at 71, 72.

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the nationalist movement, as well as the workers’ movement, which started with strikes by the

tram workers, railway workers, government printers, gas cleaners, street cleaners and postal

workers.40 This also coincided with one of Egypt’s greatest peasant revolts.41 During the peasant

revolt, students went on strike and even the local elite at the Attorney’s Syndicate followed suit,

paralyzing the state.42 As the court system broke down, rail and communications lines were cut

by the protesting peasants, preventing the transportation of agricultural produce to the urban

centres for weeks. In fact, in many instances, transportation and communication officials as well

as police and local army officers relinquished power to local demonstrators.43 The peasants also

began expropriating moveable and untraceable property, such as cattle, sheep and foodstuffs.44

While the idea of starving peasants might seem puzzling, it was the case that over a third of the

Egyptian peasantry was actually wage labourers and those who were sharecroppers had to sell

their crops in an inflationary post-war market.45 The revolt was only defused when tens of

thousands of British troops landed in Egypt. They restored control to the central government

over a virtually unarmed population.46 Britain had historically maintained a good relationship

with Egypt’s landowning class, a relationship which at times of nationalist fervour proved to be

quite a strategic alliance.47 However, the feudal system had been disappearing since the turn of

the century, and, as Raouf Abbas and Assem El-Dessouky argue, Egypt was already becoming a

capitalist state. Class conflict was also manifest in the countryside.48 Agricultural wage labourers

were under severe pressure due to rising prices and the continued unholy alliance between the

40 Selma Botman, “The Rise and Experience of Egyptian Communism: 1919-1952” (1985) XVIII:1 Stud. Comp. Communism 49 at 49. 41 Ellis Goldberg, “Peasants in Revolt” (1992) 24:2 Int’l J. Middle E. Stud. 261 at 261. 42 Ibid. at 274. 43 Ibid. 44 Ibid. at 262. 45 Ibid. at 262. 46 Ibid. at 274. 47 A series of late-nineteenth century legislative changes culminated in the establishment of full private ownership of land in 1891. See Raouf Abbas & Assem El-Dessouky, The Large Landowning Class and the Peasantry in Egypt, 1837-1952, Amer Mohsen & Mona Zikri, trans., Peter Gran, ed. (Cairo: The American University in Cairo Press, 2012) at xvii. 48 Ibid. at xii, xiv. The inter-war period, however, saw massive industrialization and investments in industrial capital as will be discussed.

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landowners, the colonial power and the palace, which sparked the revolt at the height of the

nationalist movement.

The aftermath of these events, later known as the 1919 Revolution (or the Sa’d Zaghloul

Revolution) eventually forced the British to terminate the Protectorate unilaterally in February

1922. This however did not amount to complete independence. The British maintained control

over the following: “(a) The security of the communications of the British Empire in Egypt; (b)

The defence of Egypt against all foreign aggression or interference, direct or indirect; (c) The

protection of foreign interests in Egypt and the protection of minorities; (d) The Soudan.”49

Nonetheless, through this declaration of formal independence, Egypt reached another stage of its

semi-coloniality.

In the period between the termination of the Protectorate in February 1922 and the Anglo-

Egyptian Treaty of Alliance in December 1936, Britain continued to interfere in the internal civil

administration of the country, despite the text of the unilateral declaration of independence,

which stipulated that Britain’s involvement in the country would be limited to strategic or

“external” issues. Egyptian local administrators even appealed to the League of Nations to stop

the “disturbances of the peace of the Nile Valley,” and in accordance with Article XI of the

Covenant of the League of Nations, to take action against the British aggression.50 The letter sent

to the Secretary General of the League of Nations and members of the League Council indicated

that Egypt was “not and never has been part of the British Empire,” therefore the aggression

could not be considered a domestic affair.51 Specifically, the letter recalled the treaties and the

“solemn international pledges, and arrangements” signed between Egypt and his Britannic

49 The full text of the Unilateral Declaration of Egyptian Independence can be found in Albert Paul Blaustein, Jay Adrian Singer & Benjamin R. Beede, eds. Independence Documents of the World. 1 (Brill Archive, 1977) at 204, 205. 50 Letter from the Egyptian Senator [name illegible] to the Secretary General of the League of Nations, (10 December 1924), (League of Nations Archives). Egypt was not yet a League member in 1924. Article 11 stated that “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations.” Covenant of the League of Nations, 28 April 1919, 13 (1919) AJIL Sup. 128. 51 Ibid.

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Majesty’s government.52 As the domestic Egyptian ruling class was divided over the question of

sovereignty, there seemed to have been agreement on the need for improvement of the economic

climate (including the prevention of potential labour disruptions) for local and foreign

investments. This was most clearly seen in the role played by Sidqi Pasha, through his position in

government and his relationship with the Egyptian Federation of Industries (EFI).

A Prelude to the ILO Mission: Balancing Rida’s and 2Schevenel’s “Mild Radicalism” with the ILO’s “Gradualism”

The year 1927 marked a turning point for labour militancy in Egypt and was also an opportunity

for the newly-elected Wafd government to rekindle its relationship with the labour movement.

In 1927, the celebrated nationalist economist and founder of Bank Misr, Tal’at Harb, decided

that the town of Al-Mahalla Al-Kubra (Mahalla) would become the location of the Misr

Spinning and Weaving Company (MSCW), the largest textile industrial complex in Egypt and a

symbol of nationalist industrialization.53 A workforce that grew ten-fold in in its first three years,

workers at the MSCW later became part of the frontline labour movement in Egypt.54 Since the

end of the war, workers had been calling for new labour legislation, specifically the adoption of

the draft law prepared by a group of handicraft workers in 1919. The strong rejection of this

draft by the industrialists subsequently led to the creation of the Egyptian Federation of

Industries (EFI).55 After the years of labour organizing around the question of labour legislation,

the Wafd government had no choice but to show some signs of progress.

Pressure on the Wafd government by the Egyptian working class led the government to appoint a

commission headed by Abdel Rahman Rida Pasha, the undersecretary of state at the Ministry of

Justice, (later known as the Rida Commission) to prepare a draft labour law despite pressures

52 Ibid. 53 Tal’at Harb declared in one of his speeches: “Every dress you wear that is made in the Misr Company is a banner of our national freedom.” See Hanan Hammad, “Making and Breaking the Working Class: Worker Recruitment in the National Textile Industry in Interwar Egypt” (2012) 57:S20 IRSH 73 at 76. 54 Ibid. 55 Mohammad Husny, “Al Haraka Al-‘Ommaliya Al-Misriya Hatta 1952” (2009) Socialist Papers, Centre for Socialist Studies. Available at: http://www.e-socialists.net/node/5114

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from the industrialists and despite the power struggles between the different political parties.56

The Wafd had on different occasions used labour and working class problems to serve its

political agenda. Although the industrialists were strongly opposed to any changes in the labour

code,57 the Wafd government also appointed to the Commission Dr. Isaac G. Levi, the secretary

general of the EFI and editor of its journal L’Egypte Industrielle. Levi was very close to Sidqi

Pasha, and together they were devoted advocates of the EFI’s program: the diversification of

Egypt’s economy by relying on the local bourgeoisie, whether Egyptian or foreign.58 The

Commission also included a Wafdist deputy and several government officials. The mandate of

the Commission was quite contentious; the EFI was adamantly against an exclusive focus on

industrial workers.59 The industrialists thought that if the Commission extended its mandate to

the regulation of the labour conditions of agricultural wageworkers, the landowners would thwart

the entire process. However, when the mandate of the Rida Commission was eventually

restricted to industrial workers, the unions of workers in commercial establishments led protests

against their exclusion from the protections of new labour legislation.60

The Rida Commission was remarkably slow in its investigation of the labour situation in Egypt.

It was a year before the Commission began visiting workplaces and union offices.61 Eventually,

the Commission issued its report with a number of recommendations for labour law reform. The

central recommendations were the institution of a nine-hour workday, the legal recognition of

syndicates, the regulation of the employment of women and children, the creation of conciliation

boards, sick pay and compensation for industrial accidents.62 As Joel Beinin and Zachary

Lockman have argued, such a report was quite progressive for its time. If such legislation had

been implemented, it would have been a significant political success for the labour movement

56 Ibid. 57 Beinin & Lockman, Workers on the Nile, supra note 3 at 185. 58 Joel Beinin, The Dispersion of Egyptian Jewry: Culture, Politics, and the Formation of a Modern Diaspora (Cairo: American University Press, 2005) at 238, 239. 59 Beinin & Lockman, Workers on the Nile, supra note 3 at 184. 60 Ibid. 61 Beinin & Lockman, Workers on the Nile, supra note 3 at 184. 62 Ibid. See also Hours of Work in Industry: Egypt (6 November 1937) International Labour Office, ILO Archives.

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after years of agitation around these issues. That said, the circumstances surrounding the entire

process show that the Rida Commission was actually set up by a seemingly pro-labour Wafdist

government to “anesthetise” the workers and thus consolidate its nationalist project with the

support of the labouring classes.63 The failure of the Wafd-sponsored commission to move

expeditiously ensured that such labour legislation would not be passed while the Wafd was in

power.64

After the Rida debacle, British-backed King Fu’ad fired the Wafdist government.65 At the height

of the economic crisis, Egyptians found it increasingly difficult to secure employment, the

number of unplaced students increased, and even those who opted to establish their own

commercial enterprises were blocked by the privileged status enjoyed by foreigners under the

Capitulations regime.66 For King Fu’ad and the British government, Egypt needed a strong

dictatorial rule to curb potential unrest resulting from the dire economic conditions facing the

country. As mentioned, Isma’il Sidqi Pasha could not be more suited for the job. When he came

to power in 1930, he established the labour office before the promulgation of any labour

legislation, which was fully consistent with the position taken by the Egyptian Federation of

Industries.67

Before Sidqi Pasha could meaningfully intervene on the question of labour legislation, the

British Trade Union Congress (TUC) requested that the International Federation of Trade Unions

(IFTU) send a fact-finding mission to investigate labour conditions and the status of trade unions

in Egypt.68 Consequently, at the Madrid meeting of the IFTU’s General Council in 1931, the

63 Husny, “Al Haraka Al-‘Ommaliya Al-Misriya Hatta 1952”, supra note 55. 64 Beinin & Lockman, Workers on the Nile, supra note 3 at 185. 65 H. A. R. Gibb, “The Situation in Egypt” (1936) 15:3 In’l Aff. (Royal Institute of International Affairs 1931-1939) 351 at 356. 66 Ibid. at 368. 67 Marius Deeb, “Labour and Politics in Egypt, 1919-1939” (1979) 10: 2 Int’l J. Middle E. Stud. 187 at 198. 68 The IFTU was an international organization of trade unions that officially existed from 1919 to 1945. See Dimitris Stevis & Terry Boswell, Globalization and Labor: Democratizing Global Governance (Plymouth: Rowman, and Littlefield Publishers, 2008) at 49; Joel Beinin, “Justice for All: The Struggle for Workers’ Rights in Egypt,” (February 2010) Report by the Solidarity Centre at 7. Available at: http://www.solidaritycenter.org/files/pubs_egypt_wr.pdf

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Federation passed a resolution opposing the suppression of trade unions in Egypt and calling

upon Britain to pressure the local authorities to protect the independence of trade unions.69 The

mission was led by Walter Schevenels, the general secretary of the IFTU.70 Despite his union

activism, and unlike his predecessors, he was not seen as an “activist”.71 In fact, he had a much

more managerial approach toward the functioning of the IFTU. This managerial and bureaucratic

approach put him in opposition to other activists at the IFTU, and his leadership was marked by

political and financial catastrophes that jeopardized the organization.72

Schevenels managed to meet with a large number of labour leaders in Egypt. His report was

severely critical of the government’s clampdown on trade unions. One of the central and

progressive aspects of Schevenels’s report was its emphasis on trade union independence.73 This

was particularly critical, given the role of the Wafd in swaying labour politics around the

nationalist struggle and the Egyptianization of the local bourgeoisie. However, this emphasis did

not necessarily help revive or reorganize the trade union movement. Sidqi Pasha, Graves and the

British government were not pleased with the nature of the mission, its language and its

potentially inflammatory effects on the labouring class. Therefore, the Egyptian government, the

Labour Office and the British Embassy ensured that no labour legislation would be passed as a

direct result of this mission that could in some way enhance the bargaining power of trade

unions.74 It should be noted that this was not merely an exceptional policy instituted in the

69 Lockman, “British Policy Toward Egyptian Labor Activism”, supra note 1 at 278. Lockman cited the resolution, which can be found at T1903, Archives of the Trade Union Congress, London. See Lockman at 284, endnote#34. 70 Schevenels was initially an active trade unionist in his native Belgium, where he became the provincial secretary of the Antwerp metalworkers’ union. In 1929, Schevenels was appointed deputy general secretary of the International Federation of Trade Unions (IFTU). See Geert Van Goethem, The Amsterdam International: The World of the International Federation of Trade Unions (IFTU), 1913-1945 (Hampshire: Ashgate Publishing Limited, 2006) at 72 71 Ibid. 72 Notably, he became a zealous follower of the Citrine policy: “anti-communist and anti-fascist, more diplomatic than activist, and, most of all, bureaucratic.” Ibid. 73 Beinin, “Justice for All”, supra note 68 at 7. 74 Beinin & Lockman, Workers on the Nile, supra note 3 at 205.

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colonies. The so-called voluntary collective bargaining was and remains a central feature of

employer-labour relations in the British legal system.75

Apart from the issuance of Schevenels’s report, the British government attempted to block his

visit in the first place. British officials on labour affairs, in cooperation with the local police,

threatened Schevenels with the possibility of “unpleasant incidents.”76 In addition, Graves and

his colleagues at the Egyptian Labour Office spent a considerable amount of energy to control

and monitor Schevenels’s mission.77 Isma’il Sidqi Pasha and R. M. Graves, for their parts,

needed to take instant action to pre-empt any criticisms of the government’s treatment of trade

unions.

Even before the arrival of Schevenels’s mission, Sidqi Pasha immediately invited the ILO to

send a technical assistance mission to Egypt to study the country’s labour conditions and the

organization of the Egyptian Labour Office and to propose legal reforms that would, naturally,

be in line with the general principles of international labour law. This was seen by both the

Egyptian and the British government as the “kinder” mission in its potential criticism and

assessment of the general labour situation in the country. Schevenels was more engrossed in

labour activism and the independence of trade unions and also more suspicious of government

claims. Unlike Schevenels, Butler was a “Geneva expert” invited to address a narrow set of

problems by the government (which at the time had a direct relationship with and included

members of the local bourgeoisie) and more directly through Sidqi’s relationship with the EFI.78

Indeed, the ILO took the Schevenels report with a grain of salt for its more radical stance on

labour reform.

Unlike Jan Oudegeest, the former general secretary of the IFTU and Albert Thomas, the former

director of the ILO, who had been in close correspondence on the question of building the ILO,

75 See generally, Otto Kahn-Freund, “Legal Framework” in A Flanders & H Clegg, eds. The System of Industrial Relations in Great Britain (Oxford: Blackwell, 1954) 42 at 42, 44. 76 Lockman, “British Policy Toward Egyptian Labor Activism”, supra note 1 at 278. 77 Ibid. 78 Beinin & Lockman, Workers on the Nile, supra note 3 at 204.

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Schevenels and Butler did not have a close and cooperative relationship.79 In fact, when it came

to the positions of their missions to Egypt, they were in direct conflict. After his mission,

Schevenels had sent Graves a copy of his “Proclamation to the Working Classes in Egypt”.80 In a

letter to S. L. Childs, Graves reported that Prime Minister Sidqi was not impressed by the

proclamation nor was Graves himself, since “the Egyptian Working Classes [were] absolutely

unfamiliar with the vocabulary of militant socialists and labour men.”81 Graves mentioned a

conversation that he had with “the leader of an important syndicate”, who claimed that trade

unionists were not pleased with Schevenels’s comparison of their conditions to the “almost

military organization” of the Palestinian Union. Graves wrote Schevenels to tone his language

down, however it had already been posted.82 Similarly, in a letter to Graves, Childs mentioned

that the IFTU would not find Egyptians any easier than others, implying that the IFTU would

find Egypt more of a challenge than the organization could handle.83 In an almost competitive

spirit, the ILO implicitly rejected the work of Schevenels’s fact-finding mission. Similarly, and

although the text of the Rida Commission’s report covered the main issues that would be taken

on again by the ILO mission, the local industrialists saw Butler’s ILO report as much less

objectionable than the Rida Commission report as the former had a “gradualist” approach to

labour law reform.84 The local conditions, therefore, were quite favourable to the ILO’s

impending mission.

79 Jasmien Van Dale, Magaly Rodrigez Garcia, & Geert Van Goethem, ILO Histories: Essays on the International Labour Organization and Its Impact on the World During the Twentieth Century (Bern: International and Comparative Social History Series; Peter Lang, 2010) at 100. 80 The primary text is accessible only through the Archives of the Trade Union Congress, London. 81 Letter from R. M. Graves to S. L. Childs (22 December 1931) G900/3/10/1, Labour Office – DLO/42, ILO Archives. 82 Ibid. 83 Letter from S. L. Childs to R. M. Graves (5 January 1932) ILO Archives at 2. 84 Deeb, “Labour and Politics in Egypt”, supra note 67 at 198.

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The ILO’s Mission of the “Real, the Material and the 3Technical” not the “Philosophical and the Political”

Egypt’s membership in the ILO was on the radar long before its actual accession and the ILO’s

deep involvement in the country’s labour affairs. Milward Rodon Kennedy Burge briefly

appeared as one of the main protagonists in the history of Egypt’s relationship with the ILO.85 A

crime writer, journalist, literary critic and British civil servant in Egypt, Burge was in contact

with the Director of the ILO, Albert Thomas, as early as 1930. This was particularly convenient

given that Burge was also the Director of the ILO’s office in London. He investigated the newly

formed Labour Office by Sidqi Pasha, and as soon as he heard about Graves’s appointment he

contacted Thomas with his personal assessment of this new labour protagonist in Egypt. Burge

did not consider Graves “an energetic worker” and therefore anticipated that he would require a

lot of support and advice from the ILO, “provided always that the lion’s share of credit remained

his.”86 Burge positioned himself as the “independent voice” in the eyes of Egyptian officials, in

contrast to both the Director of the ILO, who supposedly represented a foreign international

institution and the familiar British colonial apparatus in Egypt, which Graves represented. Burge

wrote to Thomas in December 1930, asking Thomas to present his detailed feedback on the draft

labour law as his own independent advice, thereby positioning Burge the mediator between the

Egyptian government and the ILO in Geneva.87 In another letter to Thomas – and still taking on

the role of the mediator – Burge laid out his concerns about the new trade union law: (1) the

capture of trade unions by a political party, emphasizing the hegemonic character of Egyptian

political parties; and (2) the exploitation of workers by a secretary (who would typically be an

“unscrupulous lawyers of an alien race”).88 In addition these challenges, which he considered

purely technical, he asked for a visit to Egypt, to be led by then deputy-Directory, Harold Butler.

He explained to the more politically minded Thomas the reason that he had asked for Butler was

85 “Edward Phelan and the ILO: the life and views of an international social actor” (2009) ILO at 295, available at: http://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_104746.pdf 86 Letter from M. R. Burge to Albert Thomas (December 11, 1930) League of Nations, International Labour Office, Personal, sent from London Office: 12 Victoria St., R.5/a/3745, ILO Archives. 87 Ibid. 88 Letter from M. R. Burge to Albert Thomas (November 26, 1930) League of Nations, International Labour Office, Personal, sent from London Office: 12 Victoria St., R.5/a/3670, ILO Archives.

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that “simply it is a matter of detailed organization,” and not politics, so it did not require and in

fact would waste Thomas’s labour to lead a purely technical visit.89 As Burge disappeared from

the picture, Graves took over as the main mediator between Egypt and the ILO, inheriting the

goal of ILO membership as the main end and international technical assistance as its means.

In September 1931, the government of Sidqi Pasha invited the ILO and its Director, now Harold

Butler, to conduct a mission in Egypt to study “on the spot” industrial conditions and to advise

on the organization of the labour department.90 The Governing Body of the ILO quickly

approved the request for the mission, and by October Butler was already in correspondence with

Graves to organize his trip to Egypt with S.L. Childs.91 As Butler and Childs were packing their

“London clothes and top hats,”92 they were assured by Graves that “[i]f there are riots or

revolutions, [they] will get the finest view” from their rooms in the Continental Hotel.93 There

was a strong possibility that riots would erupt and protestors would take to the streets during

their visit. The interwar period in Egypt saw rising anti-colonial and labour activism – riots,

protests and strikes were commonplace. As mentioned, workers had already been fighting for the

enactment of social legislation for many years prior to and independent of the ILO’s involvement

in the country. At the same time, the Sidqi Pasha government was already trying to pre-empt any

criticism by the visitors expected from Geneva. Sidqi Pasha formed a legislative committee in

November 1931 to draft a set of labour laws so that Butler could give them his “lumières” when

he arrived.94 The committee was chaired by Mahmoud Fahmy El-Kaisy Pasha and included

Keown-Boyd, a hardliner at the British-run Ministry of Interior in Egypt; Mustafa Bey El-Sadik

from the Ministry of Commerce; and Industry and Ahmed Kamel, the Director- General of

Public Security.95

89 Ibid. 90 Memorandum of the Work of the ILO in the Near and Middle East (undated, post-1947) International Labour Organization, ILO Archives at 2. 91 Letter from Harold Butler to R. M. Graves (27 October 1931) G 900/3/10, ILO Archives. 92 Letter from R. M. Graves to S. L. Childs (22 December 1931), supra note 81. 93 Letter from R. M. Graves to Harold Butler (19 December 1931) International Labour Office, ILO Archives. 94 Ibid. 95 Letter from R. M. Graves to Harold Butler (11 April 1932) G 900/3/10/2, ILO Archives.

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If the composition of a committee with no labour representation did not raise red flags about its

commitment to labour legal reform, then the committee’s subsequent position on various labour

problems should have. The committee considered legal limits on the hours of work for adults to

be “premature,” arguing that this position was based on Japanese social legislation and that Japan

was more industrialized than Egypt. The committee was against a comprehensive Labour Code

and argued for what it referred to as a gradualist approach to labour legislation. The ILO later

argued against the committee’s position on the hours of work, citing examples of labour

legislation in other similar semi-colonial countries, such as Algeria, Tunisia and Morocco.96

However, Butler’s mission readily accepted the work of the government-appointed committee

and the draft laws it prepared.97 As reported by the Egyptian Gazette’s October 1932 issue, when

Butler met with the leaders of the syndicates, Hajj Mahmoud Mansour, President of the Minet el

Bassal Weighers’ Syndicate, told him that the Syndicates had made an official request to be

represented on the legislative committee and had received no response from the government.

Butler, although sympathetic, still found that such incidents could not detract from the fact that

his very invitation by the Egyptian Government was indicative of its interest in ameliorating

labour conditions in the country.98 Therefore, such complaints were considered mere mishaps of

an otherwise enthusiastic ruling class.

Isma’il Sidqi Pasha received the ILO Mission on February 16, 1932. In his welcoming speech, he

outlined his expectations for the mission and the general directions that it should take. Sidqi’s

seven-point exposition included issues such as the government’s policy of intense

industrialization, workers’ education and technical schools and the problem of the extinction of

indigenous crafts and industries and how they could be re-vitalized by supplying the semi-luxury

demand among the higher classes.99 He also cautioned against the politicization of the workers,

noting that Egyptian workers were “not political”, but were being corrupted by politicians who

used them to further their own political ends. Sidqi’s main expectation of the mission was “two

96 Hours of Work in Industry: Egypt, supra note 62. 97 Beinin, “Justice for All”, supra note 68 at 7. 98 “Mr. Butler’s Labour Mission: Tea with Workmen’s Unions in Alexandria” (1 October 1932) The Egyptian Gazette, ILO Archives. 99 Memorandum by Harold Butler and S. L. Childs on their mission to Egypt (18 February 1932) Cairo, International Labour Office, ILO Archives at 2.

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or three sound laws” that would unite workers and employers with the government’s goal of

large-scale industrialization without being corrupted by politics. Finally, he warned against the

role of foreign workers in “awakening” an echo of slogans heard in highly industrialized

societies, which “were not understood in Egypt, and must therefore, be … designed for the

working class movement in Europe than for practical effect in Egypt.”100

3.1 The ILO’s Recommendations: from the Micro-politics of Social Reforms to a Structural Transformation in Employer-Worker Relationship

ILO Director Butler decided to write two separate reports on his mission to Egypt: one on the

social legislation needed on a micro level and another on the organization of the Labour

Department, intended to restructure the employer-labour relationship.101 According to Butler’s

account of their four-week visit, the mission visited thirty-two factories and twenty-eight

workshops across the country in different industries, ranging from pottery and cement to

railways. The program was organized by Graves, the main orator of colonial labour policy in

Egypt and his staff at the Labour Office. This meant that Butler would be in direct contact with

the class of industrialists closely aligned with Graves and the Labour Office, and in his report,

Butler expressed gratitude to the “unfailing helpfulness and efficiency of the local authorities.”102

He also acknowledged his debt to the owners and managers of all the workplaces they visited

during their trip. According to Butler’s report, he was impressed by the attitude of employers in

both European and Egyptian-owned establishments towards their workers and their problems,

noting that a great deal had already been done for the welfare of the workers in providing

favourable health and safety conditions, medical services and other benefits, despite the lack of

any legal requirement.103

100 Ibid. at 3. 101 H. Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: GENERAL OBSERVATIONS” (1932) International Labour Office, ILO Archives at 1. 102 Ibid. at 2. 103 Ibid. at 3.

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Besides his open access to the capitalist class, Butler also gathered information from the leaders

of syndicates in Cairo, Alexandria, Damanhour, Tantah and Al-Mahalla Al-Kubra. The

syndicates were mainly concerned with the betterment of working conditions and expressed little

interest in what Butler called “general questions of social philosophy.”104 According to Butler,

the workers needed the real, the material and the technical, not the philosophical and the

political. Their demands were framed as local and economistic with little bearing on larger

questions of social philosophy, which were merely abstractions from the material realities of

their working conditions. Workers’ demands in Alexandria included the desire for better

education, lower rents in working class neighbourhoods and the need for the legal regulation of

the conditions of employment. Workers in Tantah demanded limits to the hours of the working

day, objected to the payment of wages at irregular intervals and complained about the endemic

problem of unemployment. In Mahalla, the cradle of labour militancy in Egypt, workers

expressed grave concerns over the prevalence of lung disease among the hand weavers owing to

poor sanitation, and they also raised the question of unemployment. These demands were framed

by the Director as economistic and apolitical; therefore, they could easily be addressed with the

ILO’s technical assistance. Although Butler chose to label these demands as economistic and

apolitical, by expressing these larger social concerns, the workers could be understood as

negotiating the overall background rules and the terms of their relationship with their employers

and the state.105 For the purposes of Butler’s visit however, the mission’s success hinged upon

streamlining a series of labour problems into a series of labour codes. Nevertheless, the ILO’s

report warned the Egyptian government that industrial workers were becoming gradually

conscious of the deficiencies of their present labour conditions and were likely to become

incessant concerning their improvement.106 It was a clear warning signal to the local government

that some progress would have to be made on its end, or workers would take job action or even

start a riot.

104 Ibid. at 4. 105 See, for example, Duncan Kennedy’s argument that there are background rules that influence legal outcomes because they are formulated largely by a group acting politically. Duncan Kennedy, “The Stakes of Law, or Hale and Foucault” (1991) XV: 4 Leg. Stud. Forum 327 at 349. 106 Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: GENERAL OBSERVATIONS”, supra note 101 at 4.

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Depoliticizing workers’ problems and their demands went hand in hand with the ILO’s explicit

colonial labour policy, which aimed at depoliticizing work through its “technical” approach to

labour issues. The ILO’s colonial labour policy took a new turn when in 1930 it instituted a

Native Labour Code in addition to the International Labour Code created for Western and

industrialized states.107 Colonial workers were not entitled to the same rights as North American

or European workers.108 It was only after the 1944 Philadelphia declaration that the ILO changed

its approach toward the colonized world.109 However, its involvement in places such as Egypt

and Iraq prior to the 1944 declaration came from its belief that the recognition of labour

conditions in the colonies was instrumental in maintaining a stable empire.110 Therefore, the

interwar period saw a significant increase in policing colonial workplaces as a priority for

colonial labour policy adopted by both the ILO and the colonial administrations in the

periphery.111

In Egypt, the Eurocentric colonial labour policy and the general approach of policing and

inspection were constitutive aspects of the ILO’s mission. In his general observations on the

conditions of work in Egypt, especially on accidents and the impact on health, Butler drew a

distinction between the “naturally careless” and the “naturally cautious” workers and between

“women and juveniles” and other workers. In each case, the former was harder hit by the

development of industrialism. The ILO’s official position was that the effects of industrialism

varied according to the national economy’s level of dependence on industry, as well as social and

religious customs and the degree of educational advancement.112 Accordingly, the infrastructure

107 See Tripartite Meeting of Experts on Forced Labour and Trafficking for Labour Exploitation, Report for discussion at the Tripartite Meeting of Experts concerning the possible adoption of an ILO instrument to supplement the Forced Labour Convention, 1930 (No. 29) at 4, pt.#19, available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/meetingdocument/wcms_203982.pdf See also Martin Thomas, Violence and Colonial Order: Police, Workers and Protest in the European Colonial Empires 1918-1940 (Cambridge: Cambridge University Press, 2012) at 22. 108 Ibid. 109 Declaration Concerning the Aims and Purposes of the International Labour Organization, adopted by the Conference at its twenty-sixth session, Philadelphia, 1944. 110 Thomas, Violence and Colonial Order, supra note 107 at 22. 111 Ibid. at 23. 112 Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: GENERAL OBSERVATIONS”, supra note 101 at 5.

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of the social and industrial systems in the West, including the protection of workers’ rights,

respect for collective bargaining and legal recognition of trade unions, could not be transplanted

to Egypt. There was a general obligation in Article 23(a) of the Covenant of the League of

Nations stipulating that members of the League would secure “fair and humane conditions” for

workers in their own countries and in countries “to which their commercial and industrial

relations extend, and for that purpose will establish and maintain the necessary international

organisations.”113 However, this provision set a very low bar, and it did not specifically give

workers in colonial countries the same entitlements as their counterparts in Europe. Only much

later, after World War I, did the ILO Constitution indicate that its principles were “fully

applicable to all peoples everywhere and that, while the manner of their application must be

determined with due regard to the stage of social and economic development reached by each

people, their progressive application to peoples who are still dependent, as well as to those who

have already achieved self-government, is a matter of concern to the whole civilised world.”114

Even after the interwar period, then, the ILO still accepted a gradation of standards between

different territories according to their level of civilization.

The ILO report, for its part, advocated a gradualist approach to labour reform in Egypt, which

meant that basic labour protections common in Europe were deemed to be too radical. The level

of modernity and the general cultural context in the country made Egyptian workers not yet able

and ready to receive the kind of social welfare infrastructure available for European workers.

This was consistent with the line promoted by Sidqi Pasha’s government: gradual legislative

reform, technical assistance and the depoliticization of the labour movement, restricting workers’

organizing as much as possible to industrial, as opposed to political, lines.

Butler’s observations ended with an emphasis on the importance of enhancing efficiency of

production, which was directly tied to the literacy of Egyptians and their ability to assume

managerial or supervisory roles. He explained that most managers and supervisors were

Europeans because Egyptian workers were only qualified to do work that required limited

113 Covenant of the League of Nations, supra note 50 at 10. 114 Constitution of the International Labour Organization, signed at Versailles, 28 June 1919 (entered into force 4 June 1934) at 24, available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO

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technical knowledge. The colonial nature of industrial capitalism in Egypt during this period was

also framed here as technical-versus-non-technical knowledge, a knowledge that was necessary

for the successful development and efficiency of industrial production. Butler explained that

these same challenges were facing other countries, such as Japan and India. By following the

ILO’s technical recommendations, these countries were able to ratify eleven of the ILO

conventions, a goal to which Egypt should aspire.115 This aspiration, he implied, was already

being pursued by the government-formed Legislative Committee (with no labour representation),

chaired by Kaissy Pasha. Butler argued that this committee had made sufficient progress on the

drafting of labour legislation for the protection of women and children and for compensation for

industrial accidents. In fact, he had had the opportunity to attend and participate in the meetings

of the Legislative Committee drafting these new laws.116

3.2 The ILO’s Colonial Legality and Class Subjectivity

Like women’s work, the employment of children was one the ILO’s primary areas of

intervention from its early beginnings. When Butler observed the conditions of work in Egypt, he

expressed apprehension about the percentage of children working in industrial establishments

(including those under the age of 10), especially as compared to European countries. The main

argument in favour of the employment of children at the time was that through work, children

could learn a skill instead of “knocking about the streets free of supervisions.”117 “Knocking

about the streets’, Butler explained, was due to the lack of compulsory education without which

the regulation of child labour would not even be in the interest of the children themselves. This

was a perspective commonly held by employers at the time who asserted that employment

protected children from the vagaries of the streets.118 During his visit, Butler was exposed to all

sorts of “urban legends” on the nature of work and workers in the Near East. Many were infused

with years of colonial influence on the Egyptian social and legal fabric. Other examples were the

contentions that children reached puberty age in Egypt earlier than in European countries and

115 Ibid. at 14. 116 Ibid. at 16. 117 H. B. Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: The Employment of Children” (1932) International Labour Office, ILO Archives at 1. 118 Ibid.

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that after the age of fourteen Egyptian children become incapable of learning.119 Although,

Butler cautioned that the ILO should not put too much weight on this claim, he questioned the

desirability of the employment of children from the point of view of efficiency and economy.

Lower wages did not always mean efficiency and workers’ training was often more financially

lucrative for employers than the employment of cheap labour. This suggested that child labour

could be substituted for the gradual training of skilled workers.120 From these observations,

Butler prepared a list of concrete suggestions for the draft legislation on the employment of

children, which would later become part of the Egyptian labour code.121 Butler’s observations

constituted direct interventions in the legal structure of class politics in Egypt. The regulation of

the employment of women and children had a long history dating to the Victorian era, which

distinguished among workers based upon some presumption of capability and ideas about

protecting the family.122 For example, one of the first ILO Conventions to be adopted was the

Convention Concerning the Employment of Women during the Night in 1919, which controlled

119 Ibid. at 3. 120 Butler’s recommendations on the new child labour law centered on two issues. The first was a criticism of a clause in the existing legislation (Act No. 14 of July 4, 1909), which sanctioned the employment of children between the ages of nine and fourteen provided that their work would be compatible with their age and have an educational aspect, which would prepare them for future employment. He recommended that if such a provision was to be included in the new law, then it should only be of a transitional character and should be strictly supervised. The second issue was that working for long periods of time with no rest was not only harmful to the workers, but also to production – a problem that became more acute when workers were juveniles. Therefore, he recommended that children should rest after each five hours of work, except under undefined exceptional cases approved by the Labour Office. Ibid. at 4, 5, 7. 121 B. Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Summary and Conclusions” (1932) International Labour Office, ILO Archives at 1. The following is a summary of Butler’s suggestions:

I- “Employment of Children:

a. Prohibition of employment under the age of twelve on the lines of the draft law.

b. The admission of children between nine and twelve only in such cases where compulsory education is not effective and in occupations which are a real preparation for a handicraft.

c. Recommendation of the exception allowing eleven hours’ work for juvenile on certain days. d. Requirement of a rest period after five hours instead of six. e. Prohibition of night work and employment on dangerous processes as provided by the draft law.”

122 Thanks to Kerry Rittich for alerting me to this history. See, for example, The Factory Act of 1833: Eight Pamphlets, 1833-1834 (New York: Arno Press, 1972).

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women’s night’s work.123 Butler’s observations on the employment of women, or the “young

wives to be” as he called them, were generic, if not outright regressive.

For Butler the regulation of the employment of women in Egyptian industry was not as acute an

issue as it was in European countries. According to the prevailing custom in Egypt, women

ceased industrial employment as soon as they got married. Since most women would usually

marry between the ages of sixteen and twenty, Butler saw that the legal regulation of women’s

employment was of secondary importance to the general labour problem in Egypt.124 For

example, he pointed out that the application of possible maternity provisions would be quite

limited since the number of employed married women in Egypt was very small.125 However, he

noted that this provision would be consistent with the Maternity Protection ILO Convention No.

3 of 1919 and would properly form a part of any law contrived to regulate the employment of

women.126 Article 6 of the Convention stipulated that the convention should be applied to

colonies, protectorates and possessions, which were not fully self-governing (except where the

local conditions deemed its provisions inapplicable). However, the United Kingdom had not

ratified this Convention. Nevertheless, Butler’s general recommendations made no reference to

maternity protection and were centered around the following issues: (1) the abolition of women’s

night work and the prescription of weekly rest in industry and commerce, (2) the reduction of the

working week to fifty hours in industry for women and (3) the delegation of the power to

regulate women’s hours of work in commercial occupations to the locality or the municipality.127

The cultural assumptions in Butler’s depiction of female employment and the rather generic

prescription of legal reform provide an interesting contrast to historian Hanan Hammad’s

123 Convention Concerning the Employment of Women During the Night, 28 Nov. 1919, (entered into force 13 June 1921). 124 Harold Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: The Employment of Women” (1932) International Labour Office, ILO Archives at 1. 125 Ibid. at 7. 126 Convention on the Employment of Women before and after Childbirth (No. 3), 29 November 1919, as modified by the Final Articles Revision Convention, 1946, 586 UNTS I-38 (entered into force 13 June 1921) Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%2038/volume-38-I-586-English.pdf This convention was later revised in 1952 (No. 103) and finally in 2000 (No. 183). 127 Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Summary and Conclusions”, supra note 121 at 1.

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brilliant analysis of sex work during the same period as just one of a broad range of issues

involving women’s work in interwar Egypt. In the labour militant city of Mahalla, for example,

illicit sexuality and red light districts thrived and the communal regulation of sex work raised a

number of different questions on women’s employment that were mostly officially overlooked

by the ILO’s technical assistance mission.128 Butler’s recommendation that women’s night work

in industrial and commercial establishments be prohibited followed the spirit of the ILO Night

Work (Women) Convention No. 4 of 1919 (which only applied to “industrial undertakings”).

According to Article 6, the Convention was applicable to “all the colonies, protectorates and

possessions which [were] not fully self-governing.”129 Egyptian protagonists adopted what

Hammad calls the “European anxiety over security and health” when it came to sex work.130

While these issues were only briefly mentioned in Butler’s ILO report, their regulation followed

the same colonial and gendered logic that differentiated and subjected the working class to

regressive legal changes entrenching a patriarchal labour regulatory regime.

The ILO had no power to question the colonial legal system in Egypt. To the contrary, however,

the ILO’s report did not simply accept it but actually celebrated it. For example, the Director of

the ILO maintained that while workers’ compensation operated in an incredibly archaic ad hoc

fashion, the Mixed Courts were to be commended for recognizing workers’ rights to

compensation and for giving a liberal interpretation of the legal text in cases dealing with

workers’ compensation.131 The Mixed Courts were central in protecting foreign companies and

their investments in Egypt, especially during the 1930s. A commonly held position among

British officials was that the Mixed Courts “brought order out of chaos and, by endowing the

country with a judicial system second to none on the continent of Europe, had laid the basis of

that commercial credit without which foreign investment and the prosperity which followed in its

128 Hanan Hammad, “Between Egyptian ‘National Purity’ and ‘Local Flexibility’: Prostitution in Al-Mahalla Al-Kubra in the First Half of the 20th Century” (2011) 44:3 J. Soc. Hist. 751. 129 Convention Concerning the Employment of Women During the Night, supra note 123. 130 Hammad, “Between Egyptian “National Purity” and “Local Flexibility”, supra note 128 at 754. 131 Harold Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Workers’ Compensation” (1932) International Labour Office, ILO Archives at 1. See also Mark S. W. Hoyle, “The Mixed Courts of Egypt 1926-1937” (1987) 2:4 Arab Law Quart. 355 at 386.

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wake would have been impossible.”132 The ILO’s report essentially adopted this position that the

jurisprudence of the Mixed Courts provided a solid basis for new legislation.133

In a sense, the ILO was embracing what Samera Esmeir has called the “juridical humanity” of

the colonial legal culture in Egypt.134 Despite being a hybrid colonial judicial system, the Mixed

Courts “humanized” the Egyptian worker. From the arbitrariness of unregulated compensation, a

humane and orderly system of workers’ compensation, comparable to those instituted in the

metropolis, was developed through the colonial courts. Juridical humanity in Esmeir’s account is

effectively the making of the human through law. However, the process of constructing the

humanity of the colonized subject necessarily entailed discipline and oppression. The human, she

argues, became “inscribed in law as part of the civilizing process.”135 In abolishing the corveé

system, for example, Lord Cromer, the Counsel-General of Egypt (1883-1907), declared that this

was one of the moments of the great successes of empire in humanizing Egyptian subjects.136

However, corveé labour was not abolished; it was merely regulated.137 What was considered

humane in Egypt became regulated corveé labour as opposed to wage labour.138

Butler’s report and the entire technical assistance mission can be similarly understood. They

were isolated from living conditions in Egypt. One telling example was the report’s

recommendations on women’s employment mentioned earlier, which were effectively harmful to

the female working population. In addition, the system on which the ILO was based– the

132 Nathan Brown, “The Precarious Life and the Slow Death of the Mixed Courts in Egypt”, supra note 6 at 33. The subheading “Order Out of Chaos of a Crime Against Humanity?” in Brown’s article is a reference to a 1936 newspaper (Al-Musawwar), which characterized the Mixed Courts in Egypt as a crime against humanity. 133 The ILO report gave a blueprint for this new legislation that centred on the following: (1) employers were liable for workers’ compensation for accidents in industrial and commercial employment; (2) the liability to provide such compensation rested on the real employer, not on sub-contractors; (3) small employers were to be exempted from such liability; (4) a state fund should be established to cover accidents taking place in small establishments or in cases where the employer went bankrupt. Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Summary and Conclusions”, supra note 121 at 1. 134 Samera Esmeir, Juridical Humanity: A Colonial History (Stanford: Stanford University Press, 2012). 135 Ibid. at 93. 136 Ibid. at 89. 137 Ibid. at 90. 138 Ibid. at 91.

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celebrated tripartite representation of member states – was an arrangement premised on the state

of European societies. In the early twentieth century, the Egyptian working class was slowly

building its trade union movement. By the 1930s when the ILO started its technical assistance

mission, the vast majority of workers were not organized under trade unions in their traditional

industrial sense. They were often organized along lines more radical and democratic (often

including cooperation between Egyptian and foreign workers) than the rigid hierarchies of trade

unions.139 The system of tripartite state delegations, with its aim of the fair representation of the

working class, was treated by the ILO mission as one of its primary goals. However, the tripartite

system required a developed and extensive trade union movement on a scale far from the one

reached in Egypt in the 1930s. Therefore, it was not only extremely difficult to find “fair”

representation of workers in the state delegation, but these very structures (where delegations are

“representatives” or “trustees” as opposed to “delegates” or “messengers” for their

constituencies) arguably imposed a particular trajectory on the institutional development of

workers’ organizing in Egypt. This was even without considering “power” as a defining feature

of the relationship between the state, the capitalist class and the working class, where alliances

would likely rely on class compromises and diplomacy as opposed to struggle and job action.

While Butler emphasized the legal recognition of trade unions as a necessary step toward

Egypt’s admission in the ILO and its participation in its tripartite system of representation, he

stressed the need to confine the functions of syndicates to representation of their workers’

constituency in the workplace and to “eschew politics”.140 This was the general British approach

to labour regulation. Butler and the ILO were simply applying it to Egypt. He suggested that an

advisory labour council should be formed to facilitate the adoption of legislation.141 The labour

139 For an excellent account of different forms of labour organizing from the nineteenth century to mid twentieth century, see John T. Chalcraft, The Striking Cabbies of Cairo and Other Stories: Crafts and Guilds in Egypt, 1863-1914 (Albany: State University of New York, 2004) at 200. Chalcraft emphasizes popular agency in workers’ movements despite the structural limitations imposed by the mercantilist expansion and the colonial presence in Egypt. See also Ilham Makdisi, The Eastern Mediterranean and the Making of Global Radicalism, 1860-1914 (Berkley: University of California Press, 2010) at 130. Makdisi identifies different spaces for workers’ organizing, such as workers’ night schools where they were exposed to revolutionary ideas in the early twentieth century. 140 Harold Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Trade Associations” (1932) International Labour Office, ILO Archives at 2. 141 The Sidqi government did set up an Advisory Labour Council as a result of Butler’s recommendations, which was responsible for drafting labour legislation. See Graves, Note to the British Embassy: The Egyptian Government’s Attitude Towards Labour, supra note 13.

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council, however, should regard all labour questions as “non-political” to ensure its smooth and

efficient functioning.142 Butler conceded nonetheless that any further legal protections to the

trade unions would be close to impossible because of the “sensitive circumstances” arising out of

the Capitulations.143

Apart from the colonial legal regime in Egypt, notably the Mixed Courts and the Capitulations,

all other issues were within the ILO’s permissible areas of intervention. Therefore, Butler’s

report moved from reforms of the law to a reorganization of the entire Labour Department.

Significant in this context was the emphasis placed on “making workers believe” that the Labour

Department was sincerely committed to the protection of their rights. And the employer, on the

other hand, must be convinced that labour laws would not be narrowly applied and that he would

not be subjected to unnecessary annoyances.144 Butler thus argued that the revamped Labour

Department would only be successful if it maintained equally good relations with workers and

employers, following the general tripartite spirit of the ILO. To maintain this image, it was

necessary to remove the Labour Department from under the Department of Public Security in the

Ministry of Interior so that it remained part of the Ministry of Interior, but without being

controlled by the Department of Public Security.145 If it were moved to Industry and Commerce,

a conflict of interest would arise since the duty of this department was to promote industrial

development, not to protect workers’ rights. Additionally, the Labour Department would gain

substantial advantages from being part of the Ministry of Interior since the Ministry was

responsible for the regulation of the establishing new factories and had considerable control over

local authorities. Close contact with the European Department (which was affiliated with the

Ministry of Interior) would also facilitate the workings of the Labour Department, especially

142 Harold Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Unemployment” (1932) International Labour Office, ILO Archives; Harold Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Hours of Work” (1932) International Labour Office, ILO Archives; Harold Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Advisory Labour Council” (1932) International Labour Office, ILO Archives. 143 Butler, “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Trade Associations”, supra note 140 at 2. 144 Harold Butler, “Report on the Organization of the Labour Department” (1932) International Labour Office, ILO Archives at 1. 145 Ibid. at 2.

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with regards to the specific circumstances of foreign employers whose activities were regulated

by the Capitulations regime.146

Finally, Butler assigned the Labour Department the role of developing labour organizations and

syndicates, but along strictly industrial, as opposed to political, lines. The intention was to create

a technical Labour Department that would exercise some measure of control and supervision

over workers’ associations’ use of funds and political activity. This, he cautioned, should go

hand in hand with police surveillance of workers’ organizations and syndicates, which was

necessary for the protection of public security.147

Through the ILO’s technical assistance and its report, Egypt would be finally ready to become a

full member of the ILO, marking the height of cooperation and communication between the

Labour Office in Egypt and the ILO.

From Technical Assistance to Membership in the ILO 4

4.1 Technical Assistance and Its Ends

The outcomes of the technical assistance mission and the continued relationship between the ILO

and Egypt through R. M. Graves were manifested in a number of ways. First, labour relations

were increasingly becoming institutionally technical and non-political. In the aftermath of the

mission, Butler had indicated that he would be considering the appointment of a suitable expert

from Geneva to administer policies and legislation on social insurance who would be “at the

disposal of the Egyptian Government.”148 This emphasis on a technical approach to labour was

consistent with the nature of intervention agreed upon for the semi-periphery. For example,

although not strictly applicable to Egypt, Article 22 of the Covenant of the League of Nations

provided that Class A Mandates would only receive “administrative advice and assistance by a

146 Ibid. at 3. 147 Ibid. at 10. 148 Summary of discussions which took place on April 16 and 17 between Their Excellences Ahmed Pasha Kamel and Aly El-Shamsy Pasha and Mr. Harold Butler, Director of the ILO, (1936) ILO Archives at 6.

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Mandatory.”149 Therefore, this “technical” approach to labour relations in Egypt remained within

the acceptable areas of intervention in the region’s domestic policies.

Another significant aspect of the technical approach to labour law was the conceptualization of

labour law as an organic and reflexive set of relations that could be dealt with independent of

society and its structures. For example, the Capitulations regime was arguably a decisive factor

in many of the labour problems in Egypt; however, the mission glanced over the Capitulations as

hardly interfering with the complex juridical relations at foreign-owned factories. Indeed, the

capitulatory regime was not seen as inconsistent with the Covenant of the League of Nations,

implying that it did not interfere with Egypt’s autonomy.150 The conclusion to be drawn is that

the mission was limited by the colonial legal structures in existence and to recommend any

deviation from these structures would have overstepped the kinds of interventions that the ILO

could make.

Secondly, the ILO’s entangled relationship with the colonial presence in Egypt was expressed

through a top-down conceptualization of labour legal reform. Butler and Graves were able to

establish an intimate relation whereby they could formulate a joint labour policy from Cairo and

Geneva. In the years after the ILO mission, Butler continued to follow the implementation of his

report. His correspondence with Graves shows that he had a very particular understanding of

workers’ agency, especially given the labour militancy of the interwar years. His approach to the

syndicates’ law was one example: he believed that the syndicates had a lot to gain from his

report “if they knew how to use it.”151 He predicted that they would be unable to truly utilize it

and asked Graves to “get the law dealing with syndicates passed as soon as possible” to help

what he called “the non-vocal” industrial labour movement in Egypt.152 This also revealed the

high degree of intimacy between Graves and the local government. Graves would even

sometimes refer to the draft labour law as “my draft law”.153 S. L. Childs, for his part,

149 Covenant of the League of Nations, supra note 50 147 at 10. 150 “Egypt and the International Labour Organization” (undated – 1930s) ILO Reports, ILO Archives at 3. 151 Letter from Harold Butler to R. M. Graves (20 April 1932) PERSONAL, ILO Archives. 152 Ibid. 153 Letter from R. M. Graves to Harold Butler (18 January 1935) Ministry of Interior, ILO Archives.

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commended what he called Graves’s regime, which promoted the “paternal protection” of

workers as the only effective method given the “backwardness and the countless methods of

evasion of law and obligations current in the East.”154 Graves, Butler and Childs shared a

common understanding of the aims of their labour interventions in Egypt. Egyptian workers were

to be guided to social progress by a top-down legislative reform that was to guarantee Egypt an

ILO seat. The road to social progress was also guided by the consistent depoliticization of the

sphere of labour relations. Indeed, Gravesargued that it was “immoral” to promote agitation in

the labour movement for political reasons.155

Thirdly, the ILO and the Egyptian labour office understood that they had to maintain a solid

relationship with employers in Egypt, establishing an unofficial ILO-employer partnership

through Graves. Graves had repeatedly expressed his loyalty to the employers and even to the

Egyptian Federation of Industries (EFI) through his close relationship with Sidqi Pasha. He was

especially concerned with foreign employers. At one time he even called for a diplomatic

intervention by the British government to protect the interests of British employers in Egypt,

specifically to prevent the Alexandria Water Company from being forced to make “disastrous

concessions” to the workers.156 He had also indicated that it would be “absurd” to press for better

conditions in foreign-owned enterprises where the working conditions were far superior to the

conditions in Egyptian-owned ones.157

Fourthly, the Egyptian labour movement saw the shortcomings of the ILO mission. The

movement dismissed the Butler report as a limited document, if not altogether problematic. Even

Graves admitted this much to Butler, saying that although he was amazed by Butler’s ability to

grasp the nature of labour conditions in Egypt in such a short time, much better than “most of the

people who spent their lives in Egypt,” he was concerned that the Syndicates would not

appreciate his report.158 Furthermore, as part of the Labour Office’s inspection work, Miss

154 Note on Mr. Child’s visit to Egypt (January 1938) ILO Archives at 8. 155 Graves, Note to the British Embassy: The Egyptian Government’s attitude Toward Labour, supra note 13 at 4. 156 Letter from R. M. Graves to David Kelly (20 November 1937) ILO Archives. The letter had an attached note identifying Kelly as the second to Sir Miles Lampson (Ambassador to Egypt) in the British Embassy in Cairo. 157 Graves, Note to the British Embassy: The Egyptian Government’s attitude Toward Labour, supra note 13 at 4. 158 Letter from R. M. Graves to Harold Butler (11 April 1932), supra note 95.

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Mitchnik and Mrs. Fatma Sadek were hired as inspectors to oversee compliance with the new

legislation. Miss Mitchnek prepared a confidential report as a result of her inspections in Cairo,

appealing for yet another ILO intervention to save the new laws enacted in 1933. She also noted

that the new labour laws were “most unwelcome” both to the workers and their employers.159

Miss Mitchnek singled out establishments that employed women, where the employers had

threatened to dismiss them and replace them with male workers as a result of the new women’s

labour law recommended by the ILO mission. In her report, she communicated a number of

testimonies of female workers who complained about the new labour laws because they wanted

to retain their employment even if it meant working fourteen hours per day with no weekly rest.

This harks back to the generic nature of the Butler recommendations on the employment of

women. Miss Mitchnek further explained that there was a general public perception that the new

laws held no real advantages to the workers. She noted that the majority of workers in Cairo

were convinced that the Labour Office had been created for the sole benefit of the employers and

not the workers.160

The rejection of the ILO’s and the Egyptian Labour Office’s work on labour legal reform was

paralleled by the outbreak of labour strikes, various forms of job action and political protests

throughout the interwar years (including after the ILO mission). This redirected attention to other

spaces where law was operating “from below” towards a more structural transformation in

labour relations.161 For example, in 1933 (immediately after the ILO mission and the

promulgation of the new labour laws), the bus workers went on strike several times, escalating to

a complete shut-down of the bus system for three weeks. The workers found that the Labour

Office had repeatedly failed to defend them or deal with their grievances and that the office

consistently sided with the employers.162 There was another resurgence of labour militancy in

early 1935, which deeply alarmed the British officials responsible for security and labour issues

159 Miss Mitchnek, Confidential Report (15 June 1934) ILO Archives. 160 Ibid. 161 See for example the local coverage of labour actions, “Egypt’s Labour Troubles: Further Strikes Anticipated and Ex-Nabil “Mabsout” in Gaol” (2 July 1934) The Egyptian Gazette, ILO Archives. 162 Beinin & Lockman, Workers on the Nile, supra note 3 at 206.

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in the country.163 Earlier in the spring of 1936, Egyptian workers were inspired by the global

waves of workers’ strikes, and started a new wave of activism “in an explosion of labor

militancy on a scale not equalled for many years past.”164 They flooded their employers’ offices

with grievances, and began work stoppages and factory occupations, most notably the big

occupation of the Kafr al-Zayyat Oil Company.165 In an attempt to temper the demands of the

increasingly militant working class, the local government continued to seek the ILO’s technical

assistance, asking if they could institute “a law or two” as Sidqi Pasha would put it, without

agitating or politicizing the labour movement. Therefore, proceeding with membership in the

ILO was the next logical step for all the protagonists: the Egyptian government, the Egyptian

Labour Office, the British government and the office of the director of the ILO.

4.2 Egypt’s Membership and the ILO’s New Adventures

I really do think that such a gesture [of membership in the ILO] on the part of Egypt would go

far to calm an awkward situation.166

Such was Childs’s recommendation to Sir Miles Lampson, the British Ambassador to Egypt in a

private letter sent in 1935 to temper the “awkward situation” of labour militancy in the country.

He prepared a memorandum for Lampson outlining the central and outstanding questions

surrounding Egypt’s membership to the ILO.167 Childs explained that when Egypt appointed a

delegation of observers to the Annual International Labour Conference in 1932, other delegates

expressed a desire to see Egypt enter the organization. Egyptian delegates also expressed their

desire to see a permanent seat for Egypt at the ILO, but were constrained by conflicting legal

opinions on Egypt’s ability to enter the Organization without being a member of the League of

Nations. However, the United States’ entry was considered a sufficient precedent for Egypt’s

163 Ibid. at 209. 164 Ibid. at 220. 165 Ibid. 166 Letter from S. L. Childs to H. E. Sir Miles Lampson, the British Residency in Cairo, (4 April 1935) ILO Archives. 167 S. L. Childs, Egypt and the ILO: Private Memorandum for Sir Miles Lampson (4 April 1935) ILO Archives.

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case for accession.168 Childs argued that the British government should support Egypt’s

membership to the ILO since its entry to the ILO would have neither a positive nor a negative

legal effect on its potential membership in the League of Nations, contrary to what Egyptian

international lawyer and Legal Advisor to the Council of Ministers Abdel Hamid Bedawi had

argued.169 Second, if Egypt refused to pursue its membership in the ILO further, knowing there

were no legal obstacles, it would be considered a failing on the part of the Egyptian government,

implying that the country was “not yet sufficiently advanced” for equal membership in the

community of nations.170 Third, fears that membership in the ILO would result “in a too early

awakening of the labouring classes,” should be considered in light of the already rising

consciousness of Egyptian workers. Childs singled out the influential work done by the Egyptian

Labour Office, which had the approval and support of Great Britain, noting that the ILO would

be instrumental in the depoliticization of workers’ activities.171 Fourth, given the extremely

serious labour situation in Egypt, the Government would have to make some sort of gesture to

pacify the working masses. Membership in the ILO would cause a definite “appraisement”

without setting the Government on a slippery slope of labour concessions.172 Fifth, Egypt’s

membership to the ILO would broaden its access to the wide range of technical assistance

needed in conducting labour affairs and drafting labour legislation.173 It would also create a

space for constant exchange between national and international labour technicians. Finally,

membership would provide opportunities for Egyptian labour administrators to travel to Geneva

and receive exceptional technical training in the management of workers’ affairs.174

While Childs was working with the British residency in Egypt, Butler was working with Prime

Minister Muhammad Tawfiq Nasim Pasha and his government. He explained to Nasim Pasha

that other similar Islamic countries, such as Turkey, Iraq and Afghanistan, had joined the ILO,

168 Ibid. at 1. 169 Ibid. at 2. Report of Mr. Childs’ Mission to Egypt (16 April 1935) ILO Archives at 2. 170 Childs, Egypt and the ILO, supra note 167 at 2. 171 Ibid. 172 Ibid. 173 Ibid. at 4. 174 Ibid.

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which indicated that the Organization would be redirecting its attention to social conditions in

the Near East.175 Butler also explained that the International Labour Conference was the most

important international parliament after the Assembly of the League of Nations, which meant

that Egypt’s participation would certainly elevate the country’s national status and prestige.

Egypt’s membership in the ILO would prove its commitment to progressive policies in the area

of social legislation, which was necessary for the growth of Egyptian industrialization.176 Graves,

for his part, was in correspondence with Butler, updating him on the positions taken by the

different branches of the Egyptian government on the question of ILO membership. He

encouraged Butler to write a memorandum explaining the “moral advantages” of Egypt’s

membership. He suggested sending a messenger from Geneva to Cairo who would advertise the

advantages to be gained from Egypt’s membership. Graves was also working within his local

networks, including “work[ing] the press,” to promote the benefits to the Egyptian public.177

Egypt was then finally ready to join the ILO. The Wafd Party came back to power in May 1936.

The new Prime Minister Mustafa al-Nahhas Pasha headed a delegation to the United Kingdom to

finalize the issues outstanding from the 1922 unilateral declaration of independence. Within a

month, an Anglo-Egyptian Treaty of Alliance was concluded. The treaty ended the British

occupation178 and gave Egypt the power to terminate the Capitulations regime179 and to apply for

membership to the League of Nations,180 but it gave Britain control over the Suez Canal for

twenty years as “an essential means of communication between the different parts of the British

Empire.”181 It also gave Britain a list of “jurisdictional and fiscal privileges” that would be

175 Letter from Harold Butler to the Egyptian Prime Minister Muhammad Tawfik Nasim Pasha (5 February 1935) CONFIDENTIAL, ILO Archives. 176 Ibid. 177 Letter from R. M. Graves to Harold Butler (18 January 1935), supra note 153. 178 Treaty of Alliance Between His Majesty, In Respect of the United Kingdom, and His Majesty the King of Egypt, Signed at London, August 26, 1936; ratifications exchanged at Cairo, December 22, 1936 (1937) 31 AJIL Sup. 77 at 78 (Article 1). 179 Ibid at 84 (Article 9). 180 Ibid at 78 (Article 3). 181 Ibid at 79-83 (Article 8 and its annex, Article 7). Power over the Suez Canal would only be transferred after twenty years and after Egypt’s security resources were deemed sufficient to protect navigation through the Canal. The Treaty also gave Britain, in case of war, the right to use Egyptian territories, ports, aerodromes, and means of

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agreed upon in a separate treaty.182 Egypt, now soon to become a (semi) independent state, was

admitted as a member of the ILO at the twentieth session of the International Labour Conference

in June 1936, having participated in previous sessions as an observer.183

All the formalities with regard to Egypt’s entry were concluded, except for the registering of its

membership as an international treaty with the Treaty Series of the League of Nations.184

However, what remained was the ability to form a full delegation that fulfilled the ILO’s

tripartite system of representation. The Egyptian government had explained the difficulty of

having satisfactory workers’ representation on the delegation due to the absence of any body that

could truly claim to be “the most representative” of workers in Egypt.185 As discussed above, the

ILO’s system of tripartite representation presented some challenges for a country like Egypt with

a militant labour movement that operated on an unstructured basis at times and through the

unions at others. The trade union movement was still in its infancy and the unions could not have

solely accounted for or represented the entire industrial labour movement, let alone the

agricultural sector. Nevertheless, the Egyptian government still attempted to form a complete

delegation with as much labour representation as possible.

Another remaining question was the ratification of ILO conventions. Graves had put together a

committee, which prepared a report with a selection of the ILO conventions recommended for

ratification. This report was transmitted to the Minister to decide which of those could be

communication. Egypt in its turn would declare martial law and adopt effective censorship should Britain go to war, all of which proved to be quite helpful for the Allies during World War II. Egypt was admitted as a full member of the ILO in June 1936, even before the Treaty of Alliance was ratified in December of that year. 182 Ibid at 84 (Article 11). 183 “The Twentieth Session of the International Labour Conference” (1936) XXXIV: 3 Int’l Lab. Rev. at 292, 294. The statement issued by the conference participants read: “It is a matter of deep satisfaction that Egypt, which has played so great a part in the development of civilization and which for many years has sent an observer to attend the Conference, will in the future be fully associated with the work of the Organization. This constitutes a further step in the direction of universality, which has always been the ultimate aim of the Organization.” 184 Letter from S. L. Childs to Mr. Abdol Fattah Assal, Chargé d’Affaires, Egyptian Legation (23 March 1937) ILO Archives. 185 Summary of discussions, which took place on April 16 and 17 between Their Excellencies Ahmed Pasha Kamel and Aly El-Shamsy Pasha and Mr. Harold Butle, supra note 148 at 2.

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adopted by Egypt in anticipation of his attendance at the International Labour Conference.186

The first convention ratified by the Egyptian government was the Convention concerning

Statistics of Wages and Hours of Work, 1938 (No. 63) in 1940.187 This was followed by the

Underground Work (Women) Convention, 1935 (No. 45), ratified in 1947, a central aspect of

Butler’s report and consistent with the general priorities of the ILO during this period.188

Graves had prepared a presentation for a meeting of government officials to explain the nature of

their new obligations under international law. The government’s ratification of ILO instruments,

he explained, created an obligation by the government to enable discussion on the ILO

conventions in Parliament. His audience was, as he put it, “polite but alarmed”.189 Conditionality

through compliance with international labour law was gradually becoming part of the spectre of

membership, and thus the ILO was slowly drifting away from the advisory role it had played in

the Egyptian legal imagination.

Despite acquiring its formal legal equality with other states, reflected in its membership in the

ILO, Egypt still had a semi-autonomous status by virtue of the Anglo-Egyptian Treaty of

Alliance. Nevertheless, this did not hamper its development of domestic industrial capital. The

culmination of its formal legal status and an actual semi-colonial state helped nurture the

expansion of industrial capitalism in the country. Industry grew significantly in the interwar

years, but only in 1937, the year of Egypt’s admission to the League of Nations and the late

1930s more generally, did it reach a new stage of capitalist development. The population in

urban centres like Cairo and Alexandria grew by 66 percent and 55 percent respectively from

1917 to 1937.190 This growth was complemented by the legal infrastructure, specifically the

continued existence of the Mixed Courts of Egypt. By the turn of the century, the Mixed Courts

dealt with almost every important case. The rationale was that the Mixed Courts had the right to

hear not only cases involving foreign nationals, but cases involving any “foreign interest,” and

186 Ibid. at 4. 187 “Ratifications for Egypt” International Labour Organization, available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102915 188 Ibid. 189 Note on Mr. Child’s visit to Egypt, supra note 154 at 12. 190 Beinin & Lockman, Workers on the Nile, supra note 3 at 43, 46.

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this included the protection of foreign companies. In 1924, the appellate branch of the Mixed

Courts in Alexandria found the largest industrial company in Egypt not to be subject to Egyptian

law, since it was a French company operating from Egypt.191 Large industrial corporations could

thus have the legal protections required at times of nationalist unrest. This also meant that

foreign employers would be subject to the jurisdiction of the Mixed Courts, as opposed to the

domestic courts. This was the economic and legal context of the 1936 Treaty of Alliance, which

saw the conclusion of massive deals for industrial developmental projects, most significantly the

Aswan Dam project and, relatedly, the power plant fertilizer factory complex. After a six months

campaign by the English Electric Company (EEC), Nasim Pasha’s Cabinet endorsed the building

of the factory and bypassed the typical system of open tender for the contract. The Cabinet

instead authorized immediate negotiations with the EEC and British Imperial Chemical

Industries (ICI).192 Britain “abandoned all pretence of neutrality” and insisted that the Egyptian

government sign the deal on those terms. This came to be known as the June 1935 declaration,

which was used in the following year by the nationalist Wafd administration to justify its

resumption of negotiations with the consortium of British companies.193

As Britain continued its quest for industrial capital in Egypt, the 1936 Treaty of Alliance marked

the beginning of the end of British direct intervention in the formulation of domestic labour

policy. Egyptians gradually replaced British officials in the labour and security sectors of the

government, including R. M. Graves. However, British influence through its embassy in Cairo

was still felt and continued to be present until the end of World War II and even until the 1952

coup d’état.194

The ILO remained an active player in labour policy in Egypt throughout the 1930s. The Director

of the Egyptian Labour Office, Graves, obtained the draft trade union law to be discussed in

Parliament and mailed it to S. L. Childs in Geneva, asking for advice from the ILO’s trade union

191 Ellis Goldberg, Tinker, Tailor, Textile Worker: Class Politics in Egypt, 1930-1952 (Berkley: University of California Press, 1986) at 61. 192 Robert Vitalis, When Capitalists Collide: Business Conflict and the End of Empire in Egypt (Berkley: University of California Press, 1995), at 91. 193 Ibid. at 92. 194 Lockman, “British Policy Toward Egyptian Labor Activism”, supra note 1 at 282.

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experts. Graves, in a letter attached to the draft law, expressed his discontent with a few aspects,

the result of pressure from factory workers and what Graves referred to as the “so-called labour

experts” in his absence. Graves expressed distress over the exclusion of foreigners from the draft

law, the prohibition of unions of public sector manual workers and the neglect of craft and

industry unions because employers “shouldn’t be expected to cope with more than one union in

an industry in one locality.”195 However, the “serious lacuna” for Graves was the fact that no

mention was made of the Employers’ Unions.196 Butler, still the Director of the ILO, shared

some of Graves’s concerns. In an earlier exchange between Ahmed Pasha Kamel and Aly El-

Shamsy Pasha, Butler raised the question of foreigners’ membership in trade unions and

agreement was reached that they could become members if they were permanent residents of

Egypt and did not assume leadership positions in the union.197 Butler also argued that it was

important to specify the type of syndicate that the draft law was intended to encourage. He

proposed a preamble describing the kinds of activities that trade unions could undertake. This, he

argued, would be a good tool for the Department of Labour to administer the law and to give it

flexibility to refuse registration to syndicates that were not sufficiently representative or founded

on a very narrow basis.198 Thus, the ILO continued to intervene directly in domestic labour

policy, separating foreign from Egyptian workers. As this illustrates, one of the ways in which

Egyptian nationalism became directly intertwined with class struggle was through the ILO’s

interventions privileging certain categories of workers over others.

The technicalization of labour law through the ILO missions served the goal of Egypt’s

membership in the ILO. Sir Miles Lampson, the British High Commissioner for Egypt and the

Soudan (later Ambassador), explained in a private memorandum that the financial cost of

membership in the ILO would not be excessive in the long run, given that membership would

also give Egyptian labour technicians the opportunity to receive their training in Geneva thus

195 Letter from R. M. Graves to S. L. Childs, Alphenof, Hindelang, Allegäu, Germany (10 September 1936) ILO Archives. 196 Ibid. 197 Summary of discussions which took place on April 16 and 17 between their Excellences Ahmed Pasha Kamel and Aly El-Shamsy Pasha and Mr. Harold Butler, supra note 148 at 9. 198 Ibid. at 10.

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facilitating their administration of the country’s labour policy.199 The British government had a

stake in Egypt’s membership in the League of Nations and the ILO even as early as 1922 when

Britain declared the end of the protectorate.200 Less than four months after the end of the

Protectorate, Sir Percy Maurice Amos, a British barrister, judge, legal academic (one of the

founding editors of the Modern Law Review) and a legal advisor to the International Labour

Office, immediately wrote a letter to the ILO in both his “personal” capacity and his capacity as

an official of the Egyptian Ministry of Justice, inquiring about and making a legal case for

Egypt’s membership to the ILO.201 There was a clear strategy of incorporating semi-peripheral

states, such as Egypt and other Class A Mandates, into the modern community of nations.

Indeed, Egypt’s membership in the ILO and then the League created a new class of Egyptian

“Geneva bureaucrats”. The relationship between these Geneva bureaucrats (such as Ziwer Pasha

and Fakhry Pasha) and the Egyptian working class was quite dubious. One of the interesting

figures was Ali al-Shamsi Pasha, a Swiss-educated son of a wealthy cotton merchant. He was

Egypt’s representative to the League of Nations when it was admitted in May 1937,202 previously

the Minister of Education and the chairman of the National Bank of Egypt.203 As an aspiring

League diplomat, al-Shamsi Pasha also worked with the ILO and its representatives. In 1937,

after Egypt joined the ILO, al-Shamsi Pasha invited the ILO to make another official visit to

Egypt. Ali al-Shamsi was quickly identified by Childs as the sensible Egyptian official who

would help “keep the Director’s visit out of politics” and thus continue the relationship between

199 Sir Miles Lampson, Private Memorandum: Egypt and the ILO (1934) ILO Archives at 3, pt.#6, 8. 200 See M. W. Daly, “The Development of the Governor-Generaliship of the Sudan, 1899-1934” (1983) 24:1 The Journal of African History 77 at 89. See also Letter from Sir Percy Maurice Amos to the International Labour Office (30 June 1922) ILO Archives. 201 Ibid. Notably, at the founding of the Modern Law Review in 1937, there was deliberate attempt to recruit members for the Editorial Board who were “progressive but not revolutionary, academic but still of relevance to those practicing profession.” Sir Maurice Amos was among those four members selected. See Cyril Glasser, “Radicals and Refugees: The Foundation of the Modern Law Review and English Legal Scholarship” (1987) 50:6 Mod. L. Rev. 688 at 698. 202 Yunan Labib Rizk, “Al-Ahram: A Diwan of contemporary life… Ministry of Education Centennial” (25-31 August 2005) Al-Ahram Weekly Issue No. 757. 203 Magda S. Baraka, The Egyptian Upper Class Between Revolutions: 1919-1952 (Oxford: Garnet Publishing Limited, 1998) at 71.

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Egypt and the ILO based on an apolitical technical approach to labour affairs.204 The new

Egyptian Geneva bureaucracy had to confront a rising militant and democratic labour movement

advocating “law from below” as one of their tactics.205

Conclusion 5The inter-war period saw the parallel consolidation of Egypt’s semi-colonial monarchical status,

the spread of industrial capital and the direct involvement of the ILO and the structures of

international law in domestic labour policy and working class politics. The nexus of the ILO,

employers in Egypt (whether British or mutamassir or Egyptian capitalists) and Britain through

the Egyptian Cairo-based Labour Office left little room for communication with trade union

leaders, let alone rank and file workers. The ILO archive tells the story of a sovereign state that

sought technical assistance from an international institution mandated to address questions of

social reform through labour legislation. This story is one of structural transformation in labour

policy from above. The ILO’s reputation as “an institution of individuals” is most clearly

manifested in the archive’s depiction of its missions to Egypt. Specifically, the archive shows

that labour law reform in Egypt was the outcome of the cordial relationship between the Director

of the ILO, Harold Butler and the Director of the Egyptian Labour Office, R. M. Graves.

Ironically, the British Graves was, for the purposes of the ILO, the representative of Egyptian

labour affairs. Through the efforts of Graves and Butler, so the archival story reveals, Egypt

succeeded in achieving the conditions necessary for membership at the ILO.

204 Note on Mr. Child’s visit to Egypt, supra note 154 at 1-3. 205 The term “from below” is used across different disciplines, most notably in international law by Balakrishnan Rajagopal in International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003). However, I borrow this term primarily from Hal Draper’s “Two Souls of Socialism”. See Hal Draper, “The Two Souls of Socialism” (Winter 1966) 5:1 New Politics 57. Draper’s basic argument is that Marx’s novelty was his ability to combine democracy and socialism – that is socialism from below. Originally a Hegelian concept, the idea of “self-emancipation” explained by Rosa Luxemburg in Reform or Revolution, embodies the essence of “socialism from below”. Luxemburg argued that the “heart of Socialism-from-Below is its view that socialism can be realized only through the self-emancipation of activized masses “from below” in a struggle to take charge of their own destiny, as actors (not merely subjects) on the stage of the history. “The emancipation of the working classes must be conquered by the working classes themselves:” this is the first sentence in the rules written for the First International by Marx, and this is the First Principle of his life-work.” See Helen Scott, “Rosa Luxemburg’s Reform or Revolution in the Twenty-first Century” (2010) 6:2 Socialist Studies 118 at 131. See also Rosa Luxemburg, Reform or Revolution and Other Writings (London: Dover Books, 2006). In the Egyptian context, while the Geneva bureaucrats were crafting apolitical labour policies, the labour movement was militating for changes in labour legislation that would fundamentally transform the political balance of power in favour of the workers.

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The archive tells a story of labour policy in Egypt as one of progressive legal reform orchestrated

by a cooperative domestic bourgeoisie that understood the importance of involving the ILO and

believed in dealing with labour questions as “technical questions”, rather than political ones.

Despite the Geneva-London alliance and their corresponding network of relationships, however,

the entire interwar period in Egypt was a period of significant labour militancy and political

organization, which often coincided with the anti-colonial nationalist struggle. The Labour

Office-ILO joint policy aimed at depoliticizing the labour movement. International law and the

ILO helped to organize a top-down approach to social legal reform that arose in opposition to a

political labour movement that fought for a democratic bottom-up approach to labour law. By

studying the network of relationships that operated in the backdrop of the ILO’s mission, the

chapter revealed the ILO’s clear policy of tying technical assistance to Egypt’s membership in

the Organization, which relied on establishing strong ties with the colonial presence, as well as

the local industrialists.

As regards the dissertation’s interrogation of the intersection between nation, civilization and

class, the chapter showed that anti-colonial nationalism challenged the graduated self-

determination of Egypt’s semi-colonial status in international law and also the technical and

apolitical approach to class subjectivity introduced into international law through the ILO’s

technical assistance missions, in conjunction with the domestic colonial infrastructure that

facilitated the spread of foreign capital during this period.

Whereas the League of Nations sought to redirect what it perceived as ethnic nationalism

towards the creation of new nation-states, the ILO, which was organized around class, was quite

suspicious of nationalism through industrialization in Egypt.206 It saw the nationalists as a force

that corrupted the working class with their dangerous politics. Anti-colonial nationalists could

play a role in the politicization of the working class by providing the space for organizing across

industrial lines. Nevertheless, as shown in this chapter, the working class consistently resorted to

resistance methods against both the colonial presence and the tyranny of the bosses. These

methods utilized not only the structures and the language of international law, but increasingly

206 See for example Butler’s position on nationalism in his book Lost Peace. Butler, Lost Peace, supra note 20 at viii.

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methods that lay outside the law: strikes, demonstrations and occupations. At the same time, the

ILO was involved in building the nation-state insofar as its technical and apolitical approach to

labour legal reform was geared to preparing Egypt for membership in the ILO as a sovereign, or

at least semi-sovereign, nation-state. Nation and class were therefore not independent organic

categories.

Of ultimate significance, perhaps, is the fact that the ILO’s mandated focus on “class” over

“nation” as a subject of concern in international law proved to constrain rather than emancipate

the working class. As we have seen, the ILO maintained the same imperialistic and capital-

driven networks of relationships as the League.

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Conclusion

On the National Question … A Fierce Debate 1… [T]he famous “right of self-determination” is nothing but hollow, petit-bourgeois phraseology and humbug.1

A debate between a German-Pole and a Russian that started in nineteenth-century Europe and

continued until slightly after the 1917 Bolshevik Revolution captures vividly if perhaps

surprisingly what my argument on the “nation-class” dialectic is not. The debate between Rosa

Luxemburg and Vladimir Lenin, one of the most cited leftist debates on the national question,

raised many of the themes that run through this dissertation – in particular, whether to prioritize

“nation” over “class” or vice versa, or alternatively to prefer some hybrid of these and other

factors. In this dissertation, these themes are contextualized through the study of three specific

cases. Although I have sought to make visible international law’s priority of nation over class,

my position should not be conflated with the one encapsulated in Luxemburg’s polemic with

Lenin, as I will explain.

Rosa Luxemburg was a committed internationalist and representative of the radical leftist strand

of socialism in the early twentieth century, which argued, unlike the Leninist strands, for the

bottom-up, self-emancipation of workers or “socialism from below.”2 In 1893, Luxemburg

founded the Social Democratic Party of the Kingdom of Poland (SDKP) to respond to the social-

patriotic Polish Socialist Party (PPS).3 She was opposed to the self-determination of Poland.

Instead, she argued for class and not nation solidarity between the proletariat of Poland and

1 Rosa Luxemburg, “The Russian Revolution” in Rosa Luxemburg, Reform or Revolution and Other Writings (London: Dover Publications, 2006) at 200. 2 See Chapter 4, footnote # 202 of this dissertation. In her response to Lenin’s top-down approach and the Leninist forms of organization, Luxemburg stated: “Let us speak plainly. Historically, the errors committed by a truly revolutionary movement are infinitely more fruitful than the infallibility of the cleverest Central Committee.” Rosa Luxemburg, “Leninism or Marxism?” in Rosa Luxemburg, Reform or Revolution and Other Writings (London: Dover Publications, 2006) at 97. 3 Michael Löwey, Fatherland or Mother Earth?: Essays on the National Question (London: Pluto Press, 1989) at 31.

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Russia. For her, the right to self-determination was as abstract and metaphysical as other rights

under capitalism.4

… the right of nations to self-determination can be put into effect only in one way: viz., by first realizing the principles of international socialism and by attaining its ultimate goals.5

Therefore, the self-determination of nations could not be realized under capitalism. Only by

struggling for socialism could the right to self-determination be truly realized.

… such generally sober and critical politicians as Lenin and Trotsky and their friends, who have nothing but an ironical shrug for every sort of utopian phrase such as disarmament, league of nations, etc., have in this case made a hollow phrase [(self-determination)] of exactly the same kind into their special hobby…. 6

According to Luxemburg, support for self-determination and a right to secession were essentially

support for bourgeois nationalism. The “nation” was not a uniform and homogenous entity;

rather within each nation, there were classes in struggle.7

Lenin, after being attacked as the architect of the Russian program for self-determination,

responded to Luxemburg:

From the standpoint of national relations, the best conditions for the development of capitalism are undoubtedly provided by the national state. This does not mean, of course, that such a state, which is based on bourgeois relations can eliminate exploitation and oppression of nations. It only means that “self-determination of nations” in the Marxists” Programme cannot, from a historico-economic point of view, have any other meaning than political self-determination, state independence, and the formation of a national state.8

4 Ibid. at 32. See generally, Karl Marx, “On the Jewish Question” in Karl Marx, Marx: Early Political Writings, ed. Joseph O’Malley (Cambridge: Cambridge University Press, 1994) 28 at 28. 5 Rosa Luxemburg, “The Right of Nations to Self-Determination” in Rosa Luxembourg, The National Question: Selected Writings by Rosa Luxembourg, ed. Horace B. Davis (New York and London: Monthly Review Press, 1976). 6 Ibid. 7 Löwey, supra note 3 at 32. 8 V. I. Lenin, “Right of Nations to Self-Determination” (1914) in V.I. Lenin, Collected Works (Moscow: Progress Publishers, 1972).

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Lenin attacked Luxemburg for her abstract and general critique of national self-determination

regardless of the specific context, time and place; that is, he attacked her un-dialectical method.9

In that sense, he stood against bourgeois nationalism, but saw it as a possible tactic that could be

used by the oppressed nation in specific contexts. “We fight against the privileges and violence

of the oppressor nation, and do not in any way condone strivings for privileges on the part of the

oppressed nation.”10

I have argued in Chapters 2 and 3 that the League of Nations’ interventions in both Alexandretta

and Mosul were essentially projects of imperial and capital-driven nation-building. For the

League, the right to self-determination in these contexts was consumed by the national question.

At the same time, privileging the nation suppressed other factors of identity-formation. Whereas

nations became subjects of international law through the League of Nations’ ethno-national

management of the Middle East region, the working class became a subject of concern for

international law through the ILO’s technical assistance missions and the extension of its

conventions to colonial and semi-colonial territories. Even then, however, as argued in Chapter

4, the ILO’s efforts in Egypt were directed toward Egypt’s membership in the Organization as a

unified, and at least officially, as a sovereign nation-state.

The ILO, however, transformed the traditional system of inter-state representation into a

tripartite system that made industrialists” associations and trade unions as well as government

representatives part of the state’s delegation. In theory, the working class would thus have had

the opportunity to participate in framing international labour law. Despite this shift from “nation”

to “class” and the accompanying change in the system of representation, the ILO’s intervention

in Egypt did not reflect significant changes in legal outcomes. The same networks of imperial

and capitalistic relationships – that, in Evgeny Pashukanis’s words, “assume[] a legal character”

or a legal form – continued to inform the content of law and its outcomes.11

9 Ibid. 10 Ibid. 11 Evgeny Pashukanis, The General Theory of Law and Marxism (Somerset, NJ: Transaction Publishers, 2001) at 79.

190

My argument is reducible to neither positions in the Luxemburg-Lenin debate on the national

question. First, Luxemburg’s decidedly economically deterministic position on the national

question does not capture the intersections between class and nation that my three case studies

demonstrate. Furthermore, to focus on the imperial and capital-driven networks of relationships

in international law’s nation-building projects in the region is not necessarily to build an

argument against the right to self-determination per se. For example, the question today is that of

the right of the Kurdish people in Syria, Iraq, Iran and Turkey to self-determination. Kurdish

resistance in Rojava (Syrian Kurdistan) has called for Kurdish autonomy in the region, putting

into effect a grass-roots call for self-determination, in contrast to the interwar League of Nations”

nation-building projects in Alexandretta and Mosul. More can be said about the contemporary

situation. The point here is simply that the right to self-determination is, under certain

circumstances, an important and a progressive demand. This argument echoes the movement for

decolonization that took shape in many ways at the United Nations General Assembly, when in

1955 it passed a resolution stating that the right to self-determination would become part of any

future human rights covenant.12 This was further materialized by a show of African and Asian

votes in support of the draft Declaration on the Granting of Independence to Colonial Countries

and Peoples in 1960, which was later adopted with the abstention of some European countries

and the United States.13

12 Mark Mazower, Governing the World: The History of an Idea (New York: Penguin Press, 2012) at 259. See also Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009). For a response to Mazower’s argument that the United Nations became a site for Third World anti-colonial resistance (ibid. at 149-190), see Mai Taha, “Review Essay – The Mystic Wand of Participation: an Appraisal of Mark Mazower’s “No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations’” (2011) 22:7 German L. J. 1529 at 1540. 13 Mazower, Governing the World, supra note 12 at 263. Franz Fanon’s “pitfalls of national consciousness” is apposite here. While Third World solidarity at the UN might have achieved some “democratic” successes in the international legal system, in legalizing the struggle it produced new relationships of power: “In its beginnings, the national bourgeoisie of the colonial countries identifies itself with the decadence of the bourgeoisie of the West… the national middle class will have nothing better to do than to take on the role of manager for Western enterprise, and it will in practice set up its country as the brothel of Europe.” See Franz Fanon, The Wretched of the Earth (New York: Grove Press, 2004) at 101, 102. Therefore, despite a “radicalization” of self-determination through Third World struggles, the right essentially remains part of the international legal system, which is itself mired in the imperialistic, and capital-driven networks of relationships that assume a legal form, and hence have predictable legal outcomes. Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation and the Possibility of Politics (Oxford: Routledge-Cavendish, 2008) at 30.

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Marxist legal theorist Pashukanis also argued that despite the limitations of formal legality, the

struggle for the realization of the right to self-determination at certain historical moments was

revolutionary on its own and the denial of the importance of formal legality was not productive.14

At the same time, he also warned against the imperialist bourgeoisie who masked their

oppressive policies in colonized countries through “empty Wilsonian phrases” on the equality of

peoples and the rights of nations to self-determination.15 The issue here then becomes the

struggle against bourgeois democracy, which uses formal equality to disguise its colonial

projects.16 The demand for a right to national self-determination must not rely on abstract

principles:

First, it must consider the historical, concrete, and (above all) economic situation; second, the exact difference between the interests of the oppressed, exploited working classes and the general concept of the national interest, which signifies the interests of the ruling class; third, the clear distinction between nations that are oppressed, dependent and lacking in equal rights, and nations that are oppressors and exploiters.17

For Pashukanis, these must be the distinctions through which Marxists should approach the right

to national self-determination to underscore that socialism is not only based on economics, but

on many other societal factors and to counter the empty phrases on the equality of nations made

by capitalist and imperialist states through international law.18 Indeed, for him, “modern

international law is the legal form of the struggle of the capitalist states among themselves for

domination over the rest of the world.”19 Capitalist states created the concept of “civilization”,

dividing the world into civilized and semi-civilized countries and creating the class structure of

14 Ibid. at 159. 15 Evgeny Pashukanis, “Lenin and the Problems of Law” in Piers Beirne & Robert Sharlet, eds. Pashukanis: Selected Writings on Marxism and Law (London: Academic Press, 1980) at 160. 16 Ibid. 17 Ibid., paraphrasing Lenin. See V.I. Lenin, Draft Theses on the National and Colonial Questions for the Second Communist International in V.I. Lenin, Collected Works: 2nd Edition (Moscow: Progress Publishers, 1965) at 145. 18 Ibid. at 160, 161. 19 Evgeny Pashukanis, “International Law” in Piers Beirne & Robert Sharlet, eds. Pashukanis: Selected Writings on Marxism and Law (London: Academic Press, 1980) at 321.

192

international law.20 International law needed these divisions, but it also needed formal equality –

through state sovereignty – in order to exist and survive.21

Similarly, although demonstrating the need to attend to class as an analytical category in the

international legal history of the interwar period, my argument should not be understood as a tout

court rejection of a “nation-based” lens in favour of a “class-based” one, as was the case for

Luxemburg. The networks of relationships highlighted through my case studies not only showed

how the League and the ILO privileged one lens over the other, but that these preferences are

themselves a function of international law’s intricate relationship with empire and capital.

Secondly, although my argument on an abstract right to self-determination chimes well with

Lenin’s position that oppressed nations must not remain oppressed by other nations; it rejects the

Leninist top-down method. For Lenin, self-determination, like many other political principles, is

to be organized and orchestrated by the vanguard party. Kurds in Kobane (in Rojava) have

recently proclaimed that their self-determination would not be realized by the creation of an

independent Kurdish state, but that they aim to create “free, self-governing communities, based

on principles of direct democracy, that would then come together across national borders.”22 This

understanding of a grassroots bottom-up self-determination that immediately challenges the very

basis of the international legal system (the state) seems far from Lenin’s position on self-

determination more broadly.23

The cases examined in this dissertation show the interconnectedness and the mutually

constitutive character of “nation” and “class” subjectivity in international law. The last case

20 Ibid. at 325. 21 China Miéville, Between Equal Rights: A Marxist Theory of International Law (Chicago: Haymarket Books, 2006) at 161. 22 David Graeber, “Why is the world ignoring the revolutionary Kurds in Syria?” Guardian.co.uk (8 October 2014), available online at: http://www.theguardian.com/commentisfree/2014/oct/08/why-world-ignoring-revolutionary-kurds-syria-isis (last accessed 25 October 2014). 23 Lenin famously proclaimed that under socialism the state would eventually wither away and only this would bring about genuine emancipation, “The State and Revolution” in Selected Works (London: Lawrence and Wishart, 1947) at 152. At the same time the demands of the people of Kobane for self-emancipation through these non-hierarchical structures would be dismissed by Lenin as “ultra leftist.” See generally, V. I. Lenin, “Leftwing Communism: an Infantile Disorder” in V.I. Lenin, Collected Works, Vol. 31 (Moscow: Progress Publishers, 1964) at 17-118.

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study, on the ILO’s intervention in Egypt, pits “class” against “nation”, opening up the domain

of traditional units of analysis in international law. Yet while the ILO made class into a category

of concern in international law, a close examination of its intervention also demonstrates how the

ILO nonetheless maintained the same networks of relationships that informed the League’s

policies.

International Law’s Potential? 2Despite the imperialistic and capital driven networks of relationships of the League and the ILO,

Syrians, Egyptians and Iraqis were sometimes able to use the language of international law and

the mechanisms of international legal institutions to put forward their demands through the

petition system and letters to the Permanent Mandates Commission (PMC).24 This dissent was

articulated even on the state level, especially by the Turkish government at various League

meetings, treaty negotiations (Lausanne Treaty) and other forums. For example, as argued in

Chapter 3, in the Mosul Dispute, the Turkish representative, Fethi Bey, had consistently argued

for a plebiscite along the lines of those held in European countries, as against the British

government’s unequivocal support for a Commission of Inquiry, on the grounds that a plebiscite

would disturb peace on the borders, and the population in the vicinity of the frontier was

comprised of backward and uneducated tribesmen.25 Turkey made every use of international law

and its institutional mechanisms to highlight the Eurocentrism of the entire process orchestrated

by the League. Despite such attempts to use the international legal system against itself, the

League often adopted the Mandate Power’s position in inter-state negotiations and found that

most individual petitions called “for no special action on the part of the Council.”26 Thus these

24 See for example, Petitions from M. Sami Slim dated April 1, 1936; October 1, 1936; July 26, 1937, transmitted on October 30, 1937 by the French Government with its observations (Report by Mile. Dannevig), Permanent Mandates Commission, November 15, 1937, League of Nations Archives at 1, 2; Letter from Sami Slim to the Mandates Commission, Beirut, December 7, 1934. See Chapter 3 of this dissertation. On the petitions regarding the situation of Yazidis in Iraq after the Mosul intervention, see Nelida Fuccaro, “Communalism and the State in Iraq: the Yazidi Kurds, c. 1869-1940” (2006) 35:2 Middle East Stud. 2 at 20; Nelida Fuccaro, The Other Kurds: Yazidis in Colonial Iraq (London: I. B. Tauris, 1999) at 164. 25 “The Question of the Frontier Between Turkey and Iraq, Article 3 (3) of the Treaty of Lausanne” (1924) 5 LNOJ 1321. 26 See for example, Report by M. Orts, Six Petitions dated January 1, January 31, February 3 and February 5, 1933 from the inhabitants of Latakia, Homs, and Aleppo, Permanent Mandates Commission, Syria and Lebanon, C.P.M. 1480, League of Nations Archives.

194

tactics proved insufficient for a significant transformation in the League’s management of

disputes in the region.

The ILO’s approach of technical assistance missions to Egypt led to similar outcomes. The

representation of trade unionists in communications and negotiations was only symbolic. The

vast majority of interwar documents and correspondence available in the archives were between

the Director of the ILO, Harold Butler; and R. M. Graves, the orchestrator of British colonial

labour policy in Egypt (and later Palestine) and head of the Egyptian Labour Office during the

ILO’s mission. As shown in Chapter 4, Butler’s visits to Egypt were organized by Graves both

logistically and substantively.27 The short meetings documented never resulted in any

meaningful participation by the workers concerned in the drafting of labour legislation or overall

labour policy, especially given the numbers of non-unionized workers who fell outside the

purview of the ILO’s mission and given the close relationship of Graves with the industrialist

class in Egypt and the ruling elite. Nevertheless, Egyptian workers attempted to use the ILO

framework by meeting with the Director and voicing their demands and complaints.

Nevertheless, the ILO’s mission was a targeted project that had a constrained, technical and

apolitical approach to labour law reform and was to be used as a vehicle for Egypt’s membership

in the Organization as part of the new post-war state system.

International law and its institutional structures were thus used by different actors as was

possible, but the outcomes were always constrained by the imperialistic and capital driven

network of relationships that drove these structures.

Inside and Outside International Law 3In the interwar Arab Middle East, the uses of the law and the legal system were combined with

numerous other tactics and forms of non-legal resistance. As early as the nineteenth century

27 See for example, Engagements for Harold Butler and S. L. Childs (February 1932), ILO Archives. The schedule of engagements included meetings with government officials and industrialist associations and visits to factories in Cairo, Alexandria, Mahalla and other cities from February 20 to March 1, 1932. The visits were often one or two hours, which only allowed for “observing” the conditions as opposed to speaking with the workers or union officials. Even after Egypt’s membership in the ILO, Butler’s visits to Egypt did not include factory visits. For example, in 1938 Butler’s schedule included meeting with various members of the Egyptian Cabinet, meetings at the Labour Office, and a number of excursions and luncheons. See Suggested Program for Mr. Butler (1938) in Letter from RM. Graves to S.L. Childs (9 March 1938) ILO Archives.

195

throughout the Eastern Mediterranean, social justice, workers’ rights, mass secular education and

anticlericalism were among the many non-ethno-centric struggles that challenged the prevailing

social and economic order locally and globally. In such struggles semi-peripheral cities were

“full participants in the making of ... an alternative vision ... or subverting the version created ...

by European imperialism.”28 Outside the urban centers, peasant rebellions were commonplace in

Egypt and across the Levant. This was further fuelled by the commercialization of agriculture

and the large-scale privatization of property (creating a strong landholding elite) in the second

half of the nineteenth century.29

At the turn of the century, when participation in international forums was thwarted by the

colonial powers, resistance grew on other fronts. For example, as mentioned in Chapter 4, when

the Egyptian nationalist leader Saad Zaghloul and his delegation were prevented from traveling

to Europe to attend the 1919 Paris Peace Conference, there was a strong backlash from the

nationalist and workers’ movements. Students took to the streets and country-wide strikes started

rolling by tram workers, railway workers, government printers, gas cleaners, street cleaners,

workshops, employees and postal workers.30 Egypt saw one of the greatest subaltern revolts in its

history where peasants cut rail and communication lines to prevent the transportation of

agricultural produce from the countryside to rest of Egypt.31

Articulations of people’s demands did not always take a legal form. It was almost always a

combination of legal, illegal and other tactics. While the petitions and letters to the League were

often framed in the legal terms predesigned by the League’s Covenant and its various

departments, the petitioners often attempted to express their grievances in their own language

28 Ilham Khuri-Makdisi, The Eastern Mediterranean and the Making of Global Radicalism, 1860-1914 (Berkley: University of California Press, 2010) at 1, 2. Makdisi attempts to reclaim the term “radicalism”, which has been strongly correlated with leftist ideas in the Western world, nationalist ideas in the Third World and political Islam in the Muslim world. A wave of globalization started in the 1870s integrated semi-peripheral regions into the world economy. This made the region particularly susceptible to economic fluctuations by integrating semi-peripheral labour into the global market and establishing dependency on foreign investments and loans. See Makdisi at 16. 29 Edmund Burke III, “Changing Patterns of Peasants’ Protests in the Middle East (1750-1950)” in Farhad Kazemi and John Waterbury, eds. Peasants and Politics in the Modern Middle East (Miami: Florida International University Press, 1991) 24 at 24, 28. 30 Selma Botman, “The Rise and Experience of Egyptian Communism: 1919-1952” (1985) XVIII:1 Studies in Comparative Communism 49 at 49. 31 Ellis Goldberg, “Peasants in Revolt” (1992) 24:2 Int’l J. Middle E. Stud. 261 at 261.

196

and sometimes in a different register. The petitions (and other forms of communication with

international legal institutions) often challenged the overall logic and basis of the League’s vision

of national sovereignty. Frustrated by the gradation of sovereignties in the Mandate System, they

exposed the double standards of the management of semi-colonial territories in comparison to

European territories, the very essence of the system of gradation of sovereignty of the Mandate

System.32

As Pashukanis argued, the struggle lies not only within the legal sphere. At the same time, for

Pashukanis, the dismissal of legality and the refusal to use legal tactics in favour of a seemingly

more radical approach to law and the state is not helpful.33 In fact, the denial of legality leads to

another kind of legal fetish, where the struggle becomes one for a new kind of legality – of

changing the content of law – assuming that legality is an “empty sack that can be filled with a

new class content.”34 Law, therefore, remains but one among many tactics to be used for pushing

progressive demands.

Rethinking Methods 4The two cases presented in this thesis have shown that the League’s projects of nation-building

in Alexandretta and Mosul overdetermined ethnicity and omitted “class”. This omission was not

only a result of the focus on ethnicity, but a function of the imperial and capital-driven networks

of relationships that took legal form. It included the League’s relationship with the Syrian and

Iraqi ruling classes, the domestic commercial class, property owners and, especially in the case

of Mosul, extraction corporations. The emphasis on racial authenticity, singular identities and

confessional programs obscured their correlation with class and made assumptions about

political preferences, while also masking the imperial struggle for capital accumulation.

Although focused on the working class, the ILO’s top-down and technical approach to labour

reform in Egypt was similar in outcome. This approach relied on establishing deep ties with the

colonial regimes, as well as the local industrialists. It also took for granted, if not supported, the

32 Letter from Sami Slim to the Mandates Commission, Beirut, December 7, 1934, League of Nations Archives. 33 Evgeny Pashukanis, “Lenin and the Problems of Law” supra note 15 at 143. 34 Ibid.

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domestic colonial regime that both created a two-tier system of justice and facilistated the spread

of foreign capital during this period. Therefore, including “class” did not broaden the horizon of

emancipation under international law, which remained limited to a legal form that maintained the

same oppressive structures.

The outcomes of the cases tell us something both about international law in this period and about

contemporary critical international law scholarship on this period. They compel a critical

distance from international law and from the methods by which we evaluate legal outcomes.

Critical streams and a number of strands of TWAIL scholarship use discourse analysis to

understand international law and its interventions, while indicating that material interests drive

structural bias in international law. These approaches only gesture to what lies beyond the text.

The cases studied here show that even these bodies of critical legal scholarship evaluating

interwar international legal interventions tend to miss the nuances that an intersectional method

helps to illuminate. Finally, the discursive projects of these theoretical traditions cannot explain

the geo-political specificities of the semi-colonial Arab region in this period in a way that a

micro-political and historical approach can.

It has become clear across the three case studies that not only is international law a material

project in itself, but that it seems almost always to operate under the same structural and material

forms of imperialist, capitalist and patriarchal oppression.

198

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The Syrian American Society of the United States, Memorandum on the Application of the Mandatory System of the League of Nations by France in Syria (Washington D.C.: Press of C. H. Potter & co., inc., 1926) League of Nations Archives.

212

“Syrians Aghast at French Leniency to Turkey” (June 20, 1938) Great Britain and the East, League of Nations Archives.

Telegram from the British High Commissioner, Baghdad, League of Nations, C.546.1925.VII, (September 16, 1925).

The International Labour Organization Archives, Geneva Butler, H. B. “Report on Labour Conditions in Egypt with Suggestions for Future Social

Legislation: GENERAL OBSERVATIONS” (1932) International Labour Office, ILO Archives.

-------. “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: The Employment of Children” (1932) International Labour Office, ILO Archives.

-------. “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: The Employment of Women” (1932) International Labour Office, ILO Archives.

-------. “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Workers’ Compensation” (1932) International Labour Office, ILO Archives.

-------. “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Unemployment” (1932) International Labour Office, ILO Archives.

-------. “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Hours of Work” (1932) International Labour Office, ILO Archives.

-------. “Report on Labour Conditions in Egypt with Suggestions for Future Social Legislation: Advisory Labour Council” (1932) International Labour Office, ILO Archives.

-------. “Report on the Organization of the Labour Department” (1932) International Labour Office, ILO Archives.

Confidential: Report of the Organization of the Labour Department (1931) ILO Archives. “Egypt and the International Labour Organization” (undated – 1930s) ILO Reports, ILO

Archives. “Egypt’s Labour Troubles: Further Strikes Anticipated and Ex-Nabil “Mabsout” in Gaol” (2 July

1934) The Egyptian Gazette, ILO Archives. Engagements for Harold Butler and S. L. Childs (February 1932), ILO Archives.

Hours of Work in Industry: Egypt (6 November 1937) International Labour Office, ILO Archives.

Letter from Harold Butler to R. M. Graves (27 October 1931) G 900/3/10, ILO Archives. Letter from Harold Butler to R. M. Graves (20 April 1932) PERSONAL, ILO Archives.

Letter from Harold Butler to the Egyptian Prime Minister Muhammad Tawfik Nasim Pasha (5 February 1935) CONFIDENTIAL, ILO Archives.

Letter from M. R. Burge to Albert Thomas (11 December 1930) League of Nations, International Labour Office, Personal, sent from London Office: 12 Victoria St., R.5/a/3745, ILO Archives.

213

Letter from M. R. Burge to Albert Thomas (26 November 1930) League of Nations, International Labour Office, Personal, sent from London Office: 12 Victoria St., R.5/a/3670, ILO Archives.

Letter from R. M. Graves to David Kelly (20 November 1937) ILO Archives.

Letter from R. M. Graves to Harold Butler (19 December 1931) International Labour Office, ILO Archives.

Letter from R. M. Graves to Harold Butler (11 April 1932) G 900/3/10/2, ILO Archives. Letter from R. M. Graves to Harold Butler (18 January 1935) Ministry of Interior, ILO Archives.

Letter from R. M. Graves to S. L. Childs (22 December 1931) G900/3/10/1, Labour Office – DLO/42, ILO Archives.

Letter from R. M. Graves to S. L. Childs, Alphenof, Hindelang, Allagu, Germany, (10 September 1936) ILO Archives.

Letter from RM. Graves to S.L. Childs (9 March 1938) ILO Archives. Letter from S. L. Childs to H. E. Sir Miles Lampson, the Residency in Cairo, (4 April 1935) ILO

Archives. Letter from S. L. Childs to R. M. Graves (5 January 1932) ILO Archives.

Letter from S. L. Childs to Mr. Abdol Fattah Assal, Charge d’Affaires, Egyptian Legation (23 March 1937) ILO Archives.

Letter from Sir Percy Maurice Amos to the International Labour Office (30 June 1922) ILO Archives.

Memorandum by Harold Butler and S. L. Childs on their mission to Egypt (18 February 1932) Cairo, International Labour Office, ILO Archives.

Memorandum of the Work of the ILO in the Near and Middle East (undated, post-1947) International Labour Organization, ILO Archives.

Miss Mitchnek, Confidential Report (15 June 1934) ILO Archives. “Mr. Butler’s Labour Mission: Tea with Workmen’s Unions in Alexandria” (1 October 1932)

The Egyptian Gazette, ILO Archives. Note on Mr. Child’s visit to Egypt (January 1938) ILO Archives.

R. M. Graves, Note to the British Embassy: The Egyptian Government’s attitude Toward Labour (1938) ILO Archives.

Report of Mr. Childs” Mission to Egypt (16 April 1935) ILO Archives. Summary of discussions which took place on April 16 and 17 between Their Excellencies

Ahmed Pasha Kamel and Aly El-Shamsy Pasha and Mr. Harold Butler, Director of the ILO, (1936) ILO Archives.

S. L. Childs, Egypt and the ILO: Private Memorandum for Sir Miles Lampson (4 April 1935) ILO Archives.

Sir Miles Lampson, Private Memorandum: Egypt and the ILO (1934) ILO Archives

214

R. M. Graves, Note to the British Embassy: The Egyptian Government’s attitude Toward Labour (1938) ILO Archives.

University of Toronto Robarts Library Microfilm Syria and Lebanon: Examination of the Annual Report for 1936: Franco-Syrian and Franco-

Lebanese Agreements of 1936 (1936) University of Toronto Robarts Library Microfilm. Syria and Lebanon: Examination of the Annual Report for 1938 (1938) University of Toronto

Robarts Library Microfilm. Treaties

Charter of the United Nations, 26 June 1945, 1UNTS XVI, Can TS 1945 No. 7 (entered into force 24 October 1945).

Constitution of the International Labour Organization, signed at Versailles, 28 June 1919 (entered into force 4 June 1934) Available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO

Convention (No. 3) on the Employment of Women before and after Childbirth, 29 November 1919, as modified by the Final Articles Revision Convention, 1946, 586 UNTS I-38 (entered into force 13 June 1921) Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%2038/volume-38-I-586-English.pdf

Convention (No. 4) Concerning the Employment of Women During the Night, 28 Nov. 1919, (entered into force 13 June 1921) Available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312149:NO

Covenant of the League of Nations Adopted by the Peace Conference at Plenary Session, April 28, 1919, 13 (1919) AJIL Sup. 128.

Franco-Turkish Agreement Signed at Angora on October 20, 1921: Agreement Between M. Franklin-Bouillon, Former Minister, and Yussuf Kemal Bey, Minister for Foreign Affairs of the Government of the Grand National Assembly of Angora

The French Mandate for Syria and the Lebanon, July 1923, (1923) 17:3 AJIL, Supp. 177. The French Mandate for Togoland, August 1922, (1923) 17:3 AJIL 190, Supp.

Frontier Between Turkey and Iraq: Letter and Memorandum from the Turkish Government, dated September 5th, 1924, and the accompanying memorandum, Memorandum From the Turkish Government Regarding the Frontier Between Turkey and Iraq, September 16, 1924, C.494, 1924.VII. League of Nations Archives.

International Covenant on Civil and Political Rights, 16 December 1966, 6 ILM 368 (entered into force 23 March 1976).

Treaty of Alliance Between His Majesty, In Respect of the United Kingdom, and His Majesty the King of Egypt, Signed at London, August 26, 1936; ratifications exchanged at Cairo, December 22, 1936 (1937) 31 AJIL Sup. 77.

Treaty Between His Britannic Majesty and His Majesty the King of Iraq, January 1926, 7 LNOJ 550.

215

The Treaty of Peace Between the Allied and Associated Powers and Turkey, signed at Sèvres, UK Treaty Series No. 11 (10 August 1920).

Treaty of Peace with Turkey Signed at Lausanne, The British Empire, France, Italy, Japan, Greece, Romania and the Serb-Croat-Slovene State, and Turkey, 24 July 1923.

Declarations Declaration Concerning the Aims and Purposes of the International Labour Organization,

adopted by the Conference at its twenty-sixth session, Philadelphia, 1944. Court Decisions

Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier Between Iraq and Turkey) (21 November 1925) Advisory Opinion (Series B, No. 12) PCIJ Reports.

Other Documents “Annex 899b, B and C Mandates: List of Questions which the Permanent Mandates Commission

Desires Should be Dealt with in the Annual Reports of the Mandatory Powers, submitted to the Council September 3, 1926” (1926) 7 LNOJ 1248.

Beinin, Joel. “Justice for All: The Struggle for Workers’ Rights in Egypt,” (February 2010) Report by the Solidarity Centre at 7. Available at: http://www.solidaritycenter.org/files/pubs_egypt_wr.pdf

“Edward Phelan and the ILO: the life and views of an international social actor” (2009) ILO at 295, available at: http://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_104746.pdf

Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII), UNGAOR (1962).

“Harold Butler: Directeur Général de l'Organisation internationale du Travail, 1932-1938,” (2006) International Labour Organization website, available at: http://www.ilo.org/global/about-the-ilo/who-we-are/ilo-director-general/former-directors-general/WCMS_192737/lang--fr/index.htm

The League of Nations, “The Mandates System: Origin, Principles, Application” (April 1945) Series of League of Nations Publications, Geneva, available at: http://unispal.un.org/UNISPAL.NSF/0/C61B138F4DBB08A0052565D00058EE1B

Miller, David Hunter. Opinion on the Question of Upper Silesia: Written at the Request of the Government of Germany and Transmitted by the German Government to the League of Nations, to the Governments of Great Britain, France and Italy and to the Vatican (1921).

The Question of the Frontier Between Turkey and Iraq, Article 3 (2) of the Treaty of Lausanne (Oct. 1924) 5 LNOJ 1318.

“Ratifications for Egypt” International Labour Organization, available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102915

Report Adopted by the Council of the League of Nations on January 27, 1937, League of Nations, Document no: C.551. M.335 (1936), (1937) 118-120.

216

“Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions” (October 1920) LNOF, Special Supplement No. 3.

Interviews

Interview with the head of the ILO Archives, M. Remo Becci, ILO headquarters, Geneva (June 2012).