1. Introduction
The United Nations (UN) trusteeship system, established to replace and extend the mandate system, recruited mandatory powers to administer territories and populations ‘on behalf of the League’.Footnote 1 Its responsibility was to foster ‘international peace and security’Footnote 2 by maintaining ‘law and order within the trust territory’,Footnote 3 and to guide the local population towards self-sufficiency and independence. The latter objective sought to bring non-administrated areas, terra nullius, and indigenous populations, into the League of (civilised) Nations.
The trustee/mandate system thus reinforces the established international order based on nation states. It follows that the administration of each administrated entity is temporary, as was the role of the Trusteeship Council. Indeed, the Council suspended operation in 1994, because there were no longer any trust territories.Footnote 4 Nevertheless, the UN decided to preserve the Council's structure, primarily because of the difficulty of amending the Charter, but perhaps also in anticipation of future needs. Arguably, the number of disintegrating states, states in major transition processes, and post-state non-governed territories that have emerged in recent years (Syria and Iraq, among others) may provide good reasons to rekindle debates on mandates and trusteeships.
Professor Benvenisti, in his article regarding sovereigns as trustees of humanity,Footnote 5 argues that sovereigns owe responsibility to distant non-citizen humans, to humanity and to the world. This article has spurred a renewed interest in the idea of trusteeship in international law in a globalised context. Even though the subsequent debate focuses mainly on contemporary obligations of sovereign states in international interventions, sharing resources and the treatment of non-citizens in states, the debate has also rekindled some interest in the mandate system and the Trusteeship Council.Footnote 6
This article will introduce an alternative interpretation of the mandate/trusteeship system based on a critique of sovereignty. Unlike Benvenisti, who takes sovereignty for granted but reinterprets its legal and moral base and meaning, I will present the concept of ‘sacred trust of civilisation’Footnote 7 as an alternative to sovereignty, and also suggest a different goal for these ‘trusts’ – that of preparing peoples for specifically non-sovereign national independence, rather than for national sovereignty.
This is the view championed by Rabbi Dr Isaac Breuer, a German-trained jurist and practising international lawyer who represented the Jewish ultra-orthodox communities (Agudat Yisrael) in Palestine before the international committees until his death in 1946.Footnote 8 In this article, I will also present Breuer's messianic perception of the mandate as an antecedent of contemporary global trusteeship, and discuss some of the implications of this peripheral and utopian reading of the mandate.
Breuer was the grandson of Rabbi Samson Rafael Hirsch, founder of the German neo-orthodox movement. He was ordained as a rabbi at age 20 and learned law and philosophy at the universities of Strasburg and Marburg,Footnote 9 coming to define his philosophy of Judaism as neo-KantianFootnote 10 with a strong emphasis on insights from history. He participated in the First World War from 1915 to 1918 and practised law in Frankfurt until his emigration to Palestine in 1936.Footnote 11 From its very beginning, he was involved with Agudat Yisrael, a political organisation of ultra-orthodox Jews founded in Kattowitz (Poland) in 1912. He also founded and led the sub-organisation for orthodox workers, Poalei Agudat Yisrael, and represented the ultra-orthodox communities in Palestine as well as this organisation before the Peel and Anglo-American commissions on Palestine.Footnote 12
Although Breuer's views were not accepted by most ultra-orthodox rabbis and activists, and are not representative of these communities or organisations, he was chosen and trusted to act as a political leader and represent Poalei Agudat Yisrael on his own terms.Footnote 13 In fact, in retrospect, his political positions did faithfully represent the ultra-orthodox position, although his philosophy was largely ignored by his contemporaries. It seems that with regard to the Mandate, his anti-Zionist critique and his critique of sovereignty, which are the focus of this article, he represents an authentic voice within the ultra-orthodox discourse of the time.
2. The Mandates as a Critique of Sovereignty
The International Court of Justice (ICJ) has stated that ‘the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned’.Footnote 14 This is commonly understood to mean sovereign statehood.Footnote 15 Thus, the mandate/trusteeship system is commonly presented as not simply based on the sovereignty of the trustee but as also promoting the sovereignty of those entrusted nations that are considered to be so prepared. An alternative reading would focus on the somewhat ambiguous formulation of Article 22 of the Covenant of the League of Nations,Footnote 16 which promotes ‘the principle that the well-being and development of such peoples form a sacred trust of civilisation’. A similar ambiguity, in which neither statehood nor sovereignty are clearly defined as a goal, can be found in another ICJ ruling which states that the mandates were created ‘in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object – a sacred trust of civilization’.Footnote 17
This section will introduce Breuer's general critique of sovereignty, his alternative ideal of non-sovereign nationhood and its submission to law and justice, and its application to international law and the mandate system.
2.1. The Evil and Heresy of Sovereignty
As the terms ‘heresy’ and ‘evil’ imply, Breuer's argument is embedded in religious thought, but he did not perceive his argument to be strictly ‘Jewish’. Breuer held that God is universal, that ‘[t]he God of Israel is the god of all humanity’Footnote 18 and, further, that Judaism has a legacy for all humanity. On this matter, he wrote: ‘Judaism can only be an historical phenomenon if it has unique answers to the great questions that bother the peoples of the world’.Footnote 19 The argument is ‘Jewish’ in that it is based on Breuer's reading of the Bible, Jewish sources, and his analysis of history which focuses on Jewish destiny and a Jewish interpretation of the world's history.Footnote 20 However, Breuer's argument should appeal to adherents of other religions who place the ideas of God, justice or the law above that of the king, state or people. He believed it would also be convincing (if to a lesser extent) to non-religious people who place justice and humanity before states and individuals (as can be deduced from his arguments before the UN Commission, discussed below). For them, religious vocabulary would have to be replaced with equivalent terms.
Breuer's point of departure is that as sovereignty does not allow any supreme commanding law, sovereign individuals and sovereign states constitute heresy against any rule of law, especially divine law. State sovereignty is the root of warFootnote 21 and the basis for social injustice, because ‘the sovereign has no morality … between sovereigns there cannot be law and justice’.Footnote 22 Further, as the power and magnitude of states increases, so does the heresy and evil resulting from sovereignty. Therefore, ‘when nations declare sovereignty, that they are goals, war is unavoidable. … Social peace becomes utopia. The blood of humanity is [the responsibility of] nationality. Nations are the world's animals of prey’.Footnote 23
In the world of sovereign states, politics trumps justice. In politics, power trumps law. Accordingly, sovereignty and law are in constant conflict. Breuer seems to accept Carl Schmitt'sFootnote 24 famous analysis,Footnote 25 but draws an opposite conclusion,Footnote 26 preferring law over sovereignty. He argues that strong sovereignty is also a basis for church–state tensions, but instead of creating religious rights to protect religions and religious people, he proposes to weaken the state.
Sovereignty tends to ignore justice and law, as is evident both in international problems (war) and in intrastate evil (‘social peace’, ‘the social problem’). A sovereign state is not committed even to its own citizens, and may change its attitude towards them as it sees fit, repeatedly disadvantaging the weak. Breuer repeatedly connects these internal and external injustices as unavoidable consequences of national sovereignty,Footnote 27 insisting that sovereign states endanger the well-being of every individual, community and society, and indeed world peace and humanity in general.
Taking the notion that sovereignty is evil to its logical conclusion, Breuer argues that in the interest of ‘the people's well-being’ (one goal of the mandate), the mandate cannot and will not lead to full sovereignty, as such sovereignty also harms the interests of humanity in general and contradicts the ‘sacred trust of civilisation’. Breuer noted that all of the documents – Article 22, the Balfour Declaration and the Palestine Mandate – omitted the expressions ‘state’ and ‘sovereign’. The Palestine Mandate stated the goal to be ‘self-determination and independence’, and the Balfour DeclarationFootnote 28 used the term ‘a national home for the Jewish people’. Thus, in addition to his critique and alternative proposal, Breuer presents his position as a genuine and legitimate alternative interpretation of the mandate documents.
2.2. Non-Sovereign ‘Self-Determination and Independence’
Breuer objects to the idea of a single universal global society under one government, as such a government would be sovereign and therefore inevitably heretical and evil.Footnote 29 Moreover, he feels that legal variation between nations is crucial for the application of justice on earth. There are, and should be, he claims, different ways of implementing the ‘good’ according to different conditions, cultures and preferences,Footnote 30 and the only way in which these various visions can be justly implemented is through and by law. The goals of ‘self-determination’ and ‘independence’ of various nations are crucial, and local cultures, populations and institutions have to be developed towards just legal systems and forms of governance.
Modern legal theory promoted man-centred law, human-made law. Such law, by definition, requires enforcement, requiring a sovereign, necessarily descending to violent force.Footnote 31 As these laws serve to balance power and not to serve justice, they are only ‘just’ in a limited way, and will result in human suffering. Breuer warns of the danger of tyranny, which exists in any sovereign state.Footnote 32 He explicitly refutes reliance on democracy – the sovereignty of sovereign people – as sufficient protection from such a deterministic descent into violence.Footnote 33 Instead, Breuer offers an alternative social and political organisation. Rather than law serving society, he conceives of society as created by law and shaped by it. Law and justice thus precede both individuals and states, and trump their interests. Thus, the creation of non-sovereign, law-abiding states would permit the expression of particular cultures as unique forms of human organisation, while escaping the dangers of tyranny.
The term ‘non-sovereign states’ is senseless in some political philosophies for which sovereignty is a necessary component of statehood. This term, however, expresses Breuer's intention with precision – for he uses the term ‘the state of the Torah’ to describe a well-developed self-government, committed to global justice, restricted by the rule of law, and voluntarily ready to serve humanity.Footnote 34 While for others, like Carl Schmitt, ‘partial’ or ‘limited’ sovereignty is senseless, as the essence of sovereignty is its limitlessness,Footnote 35 Breuer uses these terms explicitly and intentionally. ‘Non-sovereign’ in this article should be perceived as the negation of full sovereignty, while ‘limited’ or ‘restricted’ sovereignty refers to governments that negate ‘full’ sovereignty. In the same way, I will use ‘limited’ nationality to indicate national identity and ideology which is not total, and which is subservient to justice and an inherent and cooperating member of humanity. As I understand it, Breuer uses the restricting terms to allude to both a certain form of limited nationality and sovereignty, and to a whole range of forms of government. Although most contemporary states have varying levels and forms of limited sovereignty (such as a strong rule of law, de jure obligations under international law and extensive de facto compliance with its norms, recognition of human rights and environmental laws), in Breuer's time the options were more limited. Breuer's notion of a limited state certainly included a full legal system expressing local culture and preferences as well as legal, administrative and governing institutions.Footnote 36
Breuer argues that relative nationality is the direct result of the divine revelation of an infinite and good law. This law and the rule of law are then freely accepted and internalised by all individuals and inherently restrict any form of government formed by them.Footnote 37 This divine revelation puts human power hierarchy into perspective, and causes those in power to restrict themselves and serve God, justice and society.Footnote 38 It appears that Breuer recognises that despite his preference for divine law, a strong tradition of natural law, voluntarily accepted and widely recognised, has a similar (if somewhat weaker) potential of restricting sovereignty,Footnote 39 as it can lead to a widely accepted and internalised rule of law with a deep commitment to justice, whether global or local. Breuer's recognition that just and restricting law is not confined to the Jewish or divinely revealed law is evident in his analysis of the French Revolution as a rare moment in history when public commitment to ideas succeeded in opposing the sovereign, and the submission of any future government to the Revolution's triad of values was widely accepted. According to his analysis, the Revolution failed as a result of a combination of personal interests and extreme nationalism, which undermined its stated commitment to law and justice.Footnote 40 However, he sees the temporary success of the Revolution as a first step for future political organisations to build on, without the need to wait for divine revelation.Footnote 41
Breuer himself did not wait for divine revelation. He took it upon himself to analyse and publish the failures and dangers of sovereignty, and to present an alternative. His commitment to advancing utopia by human action, instead of waiting for a messiah from heaven, is one of the issues that caused friction between him and his ultra-orthodox surroundings (and explains some of his appeal to religious Zionists). He focused on education and using his unique position to set a political example – either by creating the ‘Torah-state’ he envisioned or by at least presenting a position of selflessness in service of justice in international fora. Indeed, Breuer's preference for divine law does not imply that he perceived such law to be monolithic, clear and never changing. Rather, Breuer understood Jewish law as celebrating controversy and variations, and as adapting and evolving.Footnote 42 Thus, Breuer envisioned the Torah-state's jurisprudence, and any future just transnational divine law, as inclusive of multiple legitimate legal options.
2.3. International Law and the Mandate System
Breuer refers to the First World War as the ‘First Messianic War’ because it forced nations to realise the need for an alternative way in which to organise humanity.Footnote 43 Both the collapse of the old order based on sovereignty and the immense suffering thus engendered were undeniable: ‘From this atmosphere grew the League of Nations’ whose goal was to ‘eradicate evil and let law and justice reign’.Footnote 44 It strove to organise all states under one law, which Breuer saw as similar to the prophecies of all kings living under divine law.Footnote 45 Taken together, the goals of the League of Nations were revolutionary: (i) the goal of global peace; (ii) ensuring that the peace and well-being of the weak was equal to that of the strong;Footnote 46 and (iii) preferring law and justice over interests.Footnote 47 Unfortunately, the sovereign states could not accept that ‘[l]aw and justice do not accept any higher authority’. As states were the centre of the new international legal regime, the new system reverted to the previous order.Footnote 48 The resulting peace was therefore a peace of victors, which continued the war by political means.Footnote 49
Breuer criticised the international law created in this atmosphere, declaring it not law at all, as ‘law’ demands subservience from individuals, nations and states: ‘Really, [international law] is no law at all … not formally and not essentially. Formally only an enforceable order is law. Essentially only law that is directed to justice is law. … Inter-state law is very weak’.Footnote 50
Despite its deficiencies, the League of Nations was a great step forward in that it sought to let ‘law and justice rule the world, and protect everybody’.Footnote 51 This greatness is evident in the innovative idea of the mandate system, as perceived by Breuer. For Breuer, the mandate system enabled people to create national homes, yet remain outside the world's violent political relations. He refused to see the mandate as a phase in a transitory process to statehood. The mandate system could have been a permanent solution for people entitled to self-determination, who want to be culturally and legally self-sufficient, and who seek independence without using force. This was exactly the goal, purpose and quest of the Jewish people, as Breuer saw it, in coming home to God's land. He perceived the willingness of the international powers to offer, safeguard and promote such a homeland as a miracle and a revelation.Footnote 52
3. Declining Sovereignty and the Non-Sovereign Trustee
As Benvenisti himself noted,Footnote 53 the focus on the sovereign trustee may increase the danger of colonialism, and the concept of trust should include furthering the interests, culture and voices of the entrusted peoples.Footnote 54 Breuer, however, goes further and raises the possibility that some people will want to redefine the goals, the structure and the essence of the trust system itself. Accepting that a nation might decline sovereignty would require a change in the essence of the mandate as generally understood. It would also change the role and actions of the trustee and the structure and role of international institutions. One of the more radical results of such a redefinition of the mandate would be Breuer's concept of a non-sovereign trustee, as discussed in the second part of this section.
3.1. When People Want a Non-Sovereign National Home
Breuer argued that Jews are prohibited from striving for sovereignty.Footnote 55 Because Jewish law and politics are inherently subservient to a universal divine law, the mandate/trustee system must be developed into a permanent structure of governance.
In Breuer's religious view of history, the creation of the League of Nations divinely coincided with the Jewish return to Palestine, and the convergence of these two developments is the mandate system.Footnote 56 He saw this as a sign of divine providence, because ‘[t]he problem of the Jews and the problem of law in international relations – are one problem’,Footnote 57 and the Mandate is a solution to this one problem. Jews were to be the first nation seeking non-sovereign self-determination, inherently subservient to international law and to external legal institutions and systems. The Jewish organisation would not crave independent power, and would dedicate its communal organisation to the implementation and promotion of justice.Footnote 58
Breuer anticipates critique and stresses the legitimacy of his perception of sovereignty and its utility. He holdsFootnote 59 that limited sovereignty ‘is the legitimate sovereignty’. He then adds that such sovereignty is ‘the true liberty’. I argue that he means that the restriction of sovereignty enhances and ensures the freedoms of the people. In this, he alludes to Mishna Avot: ‘There is no free man except one that involves himself in Torah learning’,Footnote 60 interpreting this to mean that only in being commanded is one free. The voluntary submission of the self to what are perceived to be ‘good’ laws, enables individuals and states to act, innovate and expand human experience without fear of doing wrong or hurting, without fear of being wronged as a result of one's actions and without feeling restricted. Such ‘good’ laws thus expand one's freedom to pursue worthy goals, desires and ambitions. Additionally, limited sovereignty is stronger and more durable than total sovereignty, as exemplified by Jewish endurance outside ‘normal’ history, seemingly untouched by history's destructive forces.Footnote 61
The Mandate frees the Jews from having to use force because it includes the commitment to create a Jewish homeland, while ensuring the peaceful resolution of conflicts through (international) law.Footnote 62 Thus, for Breuer, the presence of Palestinians/Arabs in Palestine is not a problem, but a moral and religious opportunity. Their presence creates the potential to set an example, showing how a Jewish concept of self-restricted nationality can converge with the values and principles of the mandate system. If only both Jews and Arabs would agree to disarm,Footnote 63 create non-sovereign institutions of self-government and settle all disputes under just transnational law, they could live together as two nations, expressing their cultures and preferences side by side, and in peace. Such an example, set in the Holy Land,Footnote 64 would have great impact on the world at large.Footnote 65
As the main challenge of the Mandate is the peaceful resolution of a nationalist conflict, Breuer argued that the Jewish community should tone down its nationalism. It should accept, and actively seek, international jurisdiction and governance, forgoing any striving for Jewish sovereignty in favour of the promotion of justice.Footnote 66 Breuer convinced his party and presented exactly this position when appearing before the international committees. However, it seems that these committees did not fully understand this radical position.Footnote 67 I therefore quote his words at some length in the accompanying notes.
He challenged the members of the UN Commission to change their frame of mind and implement his vision.Footnote 68 The Commission should act as an international tribunal, seeking a just solution that will create two national, self-sufficient, independent and vibrant entities, able to fully express their culture, having significant but limited self-governance. These entities will submit themselves to international rule as implemented by a semi-mandatory power. Breuer challenged the Commission to make just decisions without regard to politics, whether ‘favouring’ the Jewish or the Arab side. Indeed, when a Commission member remarked that if a nation will not submit to the Commission's decision, the United Nations would be obliged to make the Mandatory power enforce the decision, Breuer readily agreed. Justice should be voluntarily accepted, but if not, it should be enforced. Indeed, only by using force to enforce justice can the crude use of force by sovereigns be avoided.Footnote 69
Breuer not only demanded that the Jewish state be limited by international law; he also made an important symbolic request before the Commission regarding the name of a Jewish state. He urged them to refrain from declaring it a ‘Jewish’ state or calling it a Jewish nationalistic name (like ‘Israel’), and instead suggested that the name of the state in Palestine should be ‘Peace’, the ‘state of the peace’.Footnote 70
Breuer laments the reaction of the Jewish community in Palestine to the Mandate, and its development under it. Instead of embracing the idea of relative and limited sovereignty, the community strove for sovereign independence.Footnote 71 Instead of submitting to justice, it turned to force and violence. Even though Breuer acknowledges the parallel role of the Palestinian partners in this turn of events, he focuses on the choices of the Jewish population.
Breuer's position, of course, contradicts the goals and ideas of the Zionist movement, in both its secular and religious forms. He repeatedly states that ‘there is no bigger contradiction than between Judaism and the sovereign state’.Footnote 72 In addition to its potential, or even inevitable evil, Zionism is, of course, also heresy in his eyes. In criticising Zionism as heresy, Breuer continues and re-enacts Rabbi Hirsch's struggle against the Reform movement.Footnote 73 In distancing the orthodox community from the majority Zionist movement, he reminds us of the Austrittgemeinde (the separate community) his grandfather had promoted in Frankfurt. Breuer's opposition to Zionism is unlike that of the Satmar Rabbi, Yoel Teitelbaum, who opposed Zionism because of its reliance on human actions. Breuer supported human action in history, held that God reveals itself in history, and acknowledged the success of the return of Jews to Zion and its religious significance. He urged the orthodox leaders to take responsibility and lead the Jewish community in Palestine and cope with the technological, cultural, legal and political changes, expressing his confidence in their ability to do so from an orthodox point of view and his total commitment to their rulings.
Neither Benvenisti nor his critiques can envision a people entitled to sovereignty in contemporary legal terms, but not wanting it. Such a people – choosing to depend on permanent active international involvement – might also be perceived as a burden, requiring institutional investment and an ongoing effort. For jurists from strong sovereign nations it would be difficult to imagine the benefits of non-sovereignty. From the periphery, as a member of a minority community which had long suffered at the hand of sovereign states, Breuer enriches the debate. He insisted that the Jewish people would contribute significantly to global peace and prosperity exactly from such a non-sovereign position, the benefits outweighing the costs.
3.2. The Non-Sovereign Trustee and International Law
Breuer also details the implications of his vision for the Mandatory power and for international institutions. Instead of deciding between the relative rights of the Palestinian and Jewish people for a state, the UN Commission should decide to evolve the Mandate into a permanent form, and supplement it with substantial laws, just institutions and international forces to enable this evolution and enforce it, as needed.Footnote 74 Bringing Palestinian–Jewish disputes before the League of Nations and subsequently before the UN would then force these institutions to take on additional responsibility, to acquire experience and to prepare themselves for achieving justice and enforcing it. The Jewish side of the dispute should model acceptance of the rulings – either willingly or by submission to legitimate enforcement.Footnote 75
I will raise a few questions regarding Breuer's perception of mandatory powers, following his critique of sovereign power:
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(1) The mandate system gave power to sovereign states (such as the United Kingdom) over people. With Breuer's inherent and justified suspicion of states, who guards the guardians?Footnote 76
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(2) How far does Breuer's trust in international legal systems and institutions extend? Are they infallible? If not, how can a nation achieve justice when wronged?
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(3) Is the mandate system sufficiently stable and viable in the long term? If not, into what might such a system evolve?
Before answering these three questions, it is important to note that Breuer was very aware of the failures of the League of Nations and the dire consequences for the Jewish people. At least from late 1942 onwards, Breuer seems to know not only about the persecution he himself has suffered but also about the pursuit of the total extermination of the Jews. As a methodological aside, I note that while Breuer explicitly answers these questions only from an exclusively ideological position, he also had a practical side. This being the case, I will seek to derive his more practical answers from his actions, his legal political arguments as expressed in international fora,Footnote 77 and his religious, political and legal arguments in the internal Jewish discourse.Footnote 78
1. Who will guard the guardians?
Breuer stresses that the mandatory power serves as the trustee of humanity and of civilisation, more than for the parties involved,Footnote 79 who are the trust's beneficiaries.
According to Breuer, the correct locus for defining justice is humanity at large rather than a specific society. It focuses on the common humanity of all individuals, rather than the rights of each and every individual. Man is not the ultimate end, nor is the state. Only the idea of serving God or justice (or both) is a worthy end. The concept of service, trust and the focus on humanity and justice lead to a regime of obligations.Footnote 80 Accepting power as an obligation inherently limits the trustee's sovereignty, thus preventing abuse. Where only law can wield power, an imbalance of power becomes less threatening.Footnote 81 People and states then both exist in society by submitting to certain rules, with limited and relational sovereignty.Footnote 82 I will now present Breuer's view regarding people, and then extrapolate to states and international law.
Breuer held that in a utopian world the obligations and roles of different groups (men vis-à-vis women; Jews and non-Jews) are different.Footnote 83 These differences will not be based on power relations and oppression, but will develop from the various ways in which people act out their voluntarily internalised roles in the world and express them. Those with power will never abuse it, but feel obligated to care – noblesse oblige. Apparent differences in status will not be a cause for shame, because such status differences will be negligible in the context of communally serving God and justice, and will only serve to define one's obligations to others.Footnote 84
Similarly, in a global mandate system, nations have varying levels of status and different roles in the international arena. Nations that internalise limited sovereignty might shoulder the burden and obligation of mandatory trusteeship without abusing it (noblesse oblige), and foster the full development of national societies under international governance. As they would only employ legally legitimised power in the name of justice, they would be able to do so without descending into tyranny.
Breuer regards the United Kingdom and the Allies who fought the Nazis as such selfless trustees of humanity, who have earned a level of trust so that their United Nations will operate more effectively than did the League of Nations. His belief in the trustees is optimistic in the same way that Chapter 7 of the UN Charter, the collective use of power and the UN Security Council are based on the same appreciation of the Allies.Footnote 85 Having sacrificed so much, carried the obligations so far and given up so much of their own sovereignty for the combined war effort, they had Breuer's trust. It is with such trustees and a developed global mandate system that some nations – first and foremost the Jewish nation – might choose to remain powerless, under this protection, in order to fulfil their role in the international orchestra.
Breuer saw multiple parallel processes reinforcing and balancing each other:
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(1) Trusteeship includes carrying responsibilities, investing selflessly in others, experiencing power-as-obligation on a continuous basis, interaction with international bodies and accountability towards them. Benvenisti held that trusteeship enhances the trustee's sovereignty, or at least depends on its existence.Footnote 86 Following Breuer, I offer that the continuous experience would influence the states holding the trusts, limiting their sovereignty.
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(2) Having multiple trustees, and varied trusts, might create a race to the top between the trustees, hopefully not in terms of gaining global influence, but in terms of the best subservience to the international community, institutions and justice.Footnote 87 These two together will influence changing the concept of sovereignty in the international community of nations, promoting its limitation in the service of justice.Footnote 88
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(3) A third congruent process would be an abundance of peoples who seek only limited sovereignty – non-sovereign national homelands societies and restricted states which enable peoples to develop side by side, with peaceful conflict resolution between them.
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(4) International tribunals will gain experience in ruling in conflicts, acquiring legitimacy and reputation.
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(5) International institutions (such as the Trusteeship Council) will gain experience, legitimacy and reputation in global and local governance.
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(6) Successful enforcement by third parties in the service of the tribunals and institutions will promise quick and exact implementation of the rulings, ensuring the rule of justice.Footnote 89
Both voluntarily limiting sovereignty as trustees and choosing powerlessness under law for the sake of justice are very powerful actions, but their viability relies on education. Only if the majority of a nation's population perceives justice as a supreme interest, and only if law (whether divine, natural or international) is perceived as self-evidently binding, will people agree to voluntary submission and compliance with the law. On the international level, one nation's readiness would also depend on the degree of education in the bordering nations, as well as the global situation in general. Breuer criticised the absence of law and justice in national curricula. In order to educate so as to comply with global law and justice, a curriculum of law and justice would need to be formulated and enacted. However, the same powers that refuse to submit the state to justice will typically refrain from educating their citizens about such ideas.Footnote 90 Breuer invested effort in influencing his fellow Jews and the members of the international committees, desperately trying to make them listen to his distinctive voice.
2. Injustice
Breuer takes into account that the Jewish collective might lose cases in the international legal processes.Footnote 91 He declares that willingly submitting to justice should be perceived as a guaranteed win.
Breuer explicitly holdsFootnote 92 that the Jewish community and other people should yield to the international tribunals and institutions even if they are wrong, in the name of subservience to justice. He trusts institutions that strive for justice, and correct themselves. More deeply, he holds that the injustice and human suffering from sovereign states – wars and internal injustice – will always, inherently and substantially, be more harmful than any wrong of the trustee system or international tribunals could be. Therefore, Breuer urges the Jewish community to accept, and even to encourage, forceful enforcement of judgments on themselves.
3. Stability and viability
Breuer holds that any time under the mandate system is better than any sovereignty. He acknowledges the tendency of systems to collapse into tyranny and sovereignty (like the French Revolution and the League of Nations).
Breuer stresses the flexibility of the mandate system. It enables and facilitates multiple forms of mandate that fit the nations that submit to the mandates and the trustee states. Each decision on a mandate, agreements between parties and agreements between international organisations and trustees can and should be tuned and adapted to meet specific cultural needs.Footnote 93 Such adaptation is crucial in order to enable the maximum contribution of unique national traits to global prosperity and justice. This adaptation will also foster compliance by the trustee and the cooperation of the regulated nations.
Surely Breuer did not perceive the mandates as utopian. His utopia is the rule of divine law, most likely without states at all. There are multiple possible paths between the Palestine Mandate and this global non-sovereign utopia, and these paths are to be revealed and tested in history. He offers clear criteria for testing such political and legal arrangements, institutions and systems: any proposal based on sovereignty would be considered a regression, while any subsequent development which opposes sovereignty and fosters limited nationality under law and justice would be considered a legitimate heir of the Trustee Council/mandate system, and any advance towards those goals would be considered a step forward.
4. Insights from the Jewish Periphery
This section seeks to enrich the idea of the ‘trustee of humanity’ by introducing additional sources for the idea.Footnote 94 Because of the importance of history in Breuer's theory and theology, he based his argument on readings of human history:Footnote 95 the Bible (4.1. below) and Jewish and global history (4.2.). In section 4.3. I will revisit the role of peripheral thinking regarding the trustee idea.
4.1. Biblical Sources for Non-Sovereignty
Proposing biblical sources for modern western political ideas is part of two greater projects: (i) political Hebraism,Footnote 96 and (ii) the engagement of religion and religious sources in international jurisprudence.Footnote 97 Breuer held that the first chapters of Genesis deal with the question of sovereignty, assigning great universal value to this universal message.
Genesis starts with the creation of the first human. His singularity is the basis for humanism, justice and fraternity, which are embedded in nature. However, individuals might derive a different conclusion from their singularity, with each regarding himself as sovereign.Footnote 98 For Breuer, the sin of Eden, of disobeying law by eating, had as its goal to ‘be like God’ – that is, to be a human sovereign not to be commanded.Footnote 99 Therefore sovereign individualism is heresy.Footnote 100 It is also the basis for evil, because ‘between sovereigns there cannot be law and justice, and the sovereign has no morality’.Footnote 101 In Genesis, the land quickly fills up with such sovereigns, who fight and commit evil (Genesis 6, 1–13) – humanity in the state of nature. Into this world of sovereigns God brought the flood. The divine reaction to the state of nature between sovereigns is to start from scratch, this time prefacing the creation of society with the seven Noahide laws on which society can be built: ‘The flood broke the pride of his sovereignty … [and] God revealed the seven laws of Noah that are the goal – the minimal needed for every moral social life’.Footnote 102 Breuer stresses that the laws were a prior requirement to restarting humanity, positing the idea of law as the basis for society.Footnote 103
However, according to the biblical text, humans did not give up so easily and reacted to God's power by combining their forces against God, attempting to create a global sovereign state in one tower of all humanity. Breuer employs a close readingFootnote 104 of Genesis: ‘They did not call it (the tower) in Gods’ name, but in their own – we will make ourselves a name’.Footnote 105 For Breuer, a single global state (a term he uses) can be based only on hubris, heresy and evil. Individual sovereignty can be conquered only by a stronger sovereignty,Footnote 106 which is inherently more dangerous and heretical.
A global state is also untenable in the long term because of human diversity, and the story of Babel ends with the dispersion and division of humanity into nations, which starts ‘history’ as defined by the struggle between sovereign states. Breuer explains, in a typically ironic expression, that there is no need for another flood because states bring floods of blood upon themselves: ‘The cruel and vicious waters of the states, stormy with and in their sovereignty, are enough. These waters turn to – blood’.Footnote 107
Breuer traces the development of sovereignty and anti-sovereignty in the Bible through the books of Judges, Samuel and Kings, leading up to the prophets who posit themselves as the opposition to sovereign kings. They speak up in the name of law and justice, calling on the Kings to restrict themselves, to submit to God and to serve Him and humanity by ensuring social justice, thereby creating a world without war.Footnote 108
The kingdom of Israel – the pure example of total sovereignty – collapsed, its tribes dispersed, never to be known again. The Judean kingdom included kernels of the alternative ideal of Jewish restricted nationhood, subservient to the prophets and God. A limited nationhood, independent of political power and sovereignty, was further developed under the Hellenistic and Roman conquests, and beyond. Despite the atrocities and disasters of these periods, this development enhanced Jewish resilience and cultural power. As opposed to pro-monarchy and pro-sovereignty Jewish traditions, this Jewish reading that opposes sovereignty, monarchy and statehood in the Bible has been under-represented.Footnote 109 It is precisely the return to Israel without the return of the Jewish kingdom (and the development of international law and state accountability) that convinces Breuer that this is a messianic process.
This tradition has many implications for the discourse regarding states as trustees for humanity, as detailed above. As opposed to ‘sovereignty as trusteeship’, obligations stem from subservience, not from power and sovereignty, and only justice can justify the enforcement and the overall importance of the rule of law.
4.2. Jewish Readings of History as a Source for the Discourse about Sovereignty
Breuer's historical analysis is based on a Jewish view of history, the view of an experienced non-player, a spectator and, arguably, of an object and victim of the unfolding events. Throughout Breuer's career the Jewish voice was the voice of a minority, and the ultra-orthodox voice was a minority vis-à-vis the voices of Jewish Zionism.
For Breuer, the Jewish people represented the opposite of sovereign nationality, in its laws and throughout its history in exile. With no territory,Footnote 110 no will for expansion and refusing any coercive force, it lived in, with, by and for the law. It developed that law and sought to build communities around the idea of subservience to law and justice. Its perception of nationhood, connecting the dispersed communities, was built on this unifying law and legal discourse.Footnote 111 In Breuer's words, Jewish nationalism ‘does not serve itself as a god, but is ready to submit itself to the divine will’.Footnote 112
Breuer understood that totalitarian Nazism sought to destroy both the idea of law and the Jews who carry the idea of law without sovereignty, of a relative nationality that serves humanity. The war of the Allies against the Nazis is also the war against the ideas the Nazis held, and against the potential that exists in all cultures.Footnote 113 Breuer yearns for an ideological victory over the Nazis, in which the idea of tyrant sovereignty will be replaced by a global community of societies serving justice.Footnote 114
Following historical processes from the periphery, events repeatedly reinforce his convictions. Breuer's position is a periphery within a periphery, a minority within a minority, and this influences his point of view. He is not part of the Jewish national political leadership and is therefore less influenced by the processes initiated by the Mandate that push the Jewish population towards statehood. He also experienced the League of Nations from the perspective of a member of a national minority, seeing the protection mechanism take shape, develop and fail. Thus, his enchantment does not blind him to the institution's inherent and systemic deficiencies, as seen from his flawed ‘Jerusalem’; yet he cannot help but see the even worse consequences of sovereignty.
4.3. The Peripheral View of International Law and Trusteeship
This ‘view from the periphery’ could potentially contribute to a richer and more nuanced understanding of the mandate system, in theory and in practice.Footnote 115 Breuer acted at the periphery of the nexus between Zionism, the United Kingdom and the international community, and felt like a minority within a minority (and even there, in his own community, he was in the minority). His double periphery enabled him to see and emphasise aspects less obvious to other players enchanted by sovereignty. Neglected at the time, his writings could shed light on current debates that reflect on the mandate system. Can we attribute his unique contribution to the peripheral view? We could suggest other characteristics such as his Jewishness and religiosityFootnote 116 as alternative or supplemental causes. Both have been offered as factors that influence jurists, in theory and in practice.Footnote 117 Breuer himself characterises his position as Jewish in origin, but applicable in other traditions, religious or otherwise. I argue that his peripheral point of view had a significant impact on his understanding of the mandate system.
It is hard to differentiate between the factors, as many Jews were and are influenced by Jewish culture, by religiosity and by being on the periphery of the international events; all may have contributed to the special perception of international law. My argument for the impact of the peripheral point of view is based partially on the similarities between Breuer and two other rabbis who discussed international law before the Second World War, and the differences between these three and other jurists – theoreticians and practitioners – from Jewish descent, who acted in both Jewish and international centres. Living in the centre of events of a Westphalian system, most Jews – religious and secular alike – tended to accept its basic assumptions. Therefore, without discounting the impact of religion in general, and the huge impact of Jewish sources and culture on Breuer in particular, I argue that looking at a system from the periphery reveals aspects which are hard to notice from the centre, as I will now briefly discuss.
In my research regarding prevailing attitudes in Jewish law towards international law, I found only three rabbis who formulated a coherent and comprehensive opinion before 1940. All three lived or acted at the periphery of the Jewish political events of their time (1900–46). All three were influenced by the culture and jurisprudence in their respective localities, much like Breuer was influenced by his studies and experiences in Germany. Consequently, they disagree on many theoretical, religious and practical issues regarding the Jewish attitude towards international law. However, all three share the following positions:
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• they all criticised international law as overly state-centric, neglectful of individuals and preferring states over peoples, groups and justice;
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• they all celebrated the idea of the League of Nations but criticised its weaknesses; and
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• all three promoted the subservience of the Jewish people and state to the idea of world peace, and to international justice and governance.Footnote 118
The similarities between the three rabbis are striking. All support international law, international institutions and limited sovereignty, anticipating subsequent trends in international law. They were heavily influenced by their surroundings but reached similar (though not identical) conclusions, based on different Jewish sources and different forms of argument. Their Jewishness cannot explain this, as most Jews at the time were very nationalistic, mostly missing the significance of international law. Others, especially international jurists of Jewish descent, supported universal international law, based on the sovereignty of states. This is true also for most non-Jewish religious jurists of the time. It is the peripheral viewpoint of these three rabbis, I argue, which was crucial for their unique positions, in the same way that it contributed to their ability to recognise the significance of the development of international law for the Jews and the world. On this basis, this article joins the call to listen to peripheral voices in international legal discourses. Multiple views of legal institutions attest to the way in which a rule or institution is perceived throughout societies. Peripheral perceptions, interpretations and implementations of international law can help us to understand to what extent international norms are accepted, as well as the range of interpretations given to them.
Religious texts and communities are an important sub-type of periphery, offering multiple ideological lenses through which to look anew at concepts and entrenched convictions in international law. As non-state actors, religious leaders and communities are less invested in accepted and mainstream discourse and are influenced by different political incentives,Footnote 119 their unique peripheral views on international norms and institutions can accentuate certain aspects (which exist or potentially exist) and ignore or downplay others.
5. Concluding Thoughts
One could argue that the ‘golden rule’ – ‘What is hateful to you, do not do unto others’ – is the most commonly agreed moral rule. However, when it comes into conflict with one's own interests it is also relatively rarely adhered to, or at least very difficult to uphold. Jewish lore presents a version of the rule as the essence of the whole law of the Torah.Footnote 120 If people let law reign supreme over interests and feelings, a just society is a viable and achievable goal. Adhering to the golden rule in international relations requires subordinating the sovereignty of the state. Breuer argues that the mandate system is a tool to develop nationality without developing an insatiable thirst for power, which would not necessarily result in war and injustice. Willing subservience to an international mandate is trading power for strength and endurance, replacing nationalist pride for national integrity and ensuring not only world peace, but also social justice.Footnote 121 In this conclusion I will discuss the practical implications of making this trade.
5.1. Between Idealism and Pragmatism
Breuer's ideal of peoples willingly giving up the idea of sovereignty is difficult for a non-religious audience to accept; it seems that Breuer offers a Utopia only for believers. While some students, opponents and academics have presented him as stern, ideological, separatist and perfectionist, this misses his activism and political career, which include a pragmatic and realist aspect. In fact, Breuer worked hard, with all of the time and resources he had available to him, in pursuit of his utopian vision. This is evident in his recognition of the mandate system, born out of necessity, as a potential divine revelation, even without regarding the international institutions of his time as utopian.
Breuer's support for these partial solutions, and partial theoretical and moral advances, is not merely pragmatism. It was based on the notion of these ideas and institutions as a possible path between the ‘is’ and the ‘ought’. Breuer fully recognised these partial improvements and solutions if, and only if, he felt they correctly analysed the problem. If they opposed total sovereignty and paved a way to further alternatives, these solutions, imperfect as they are, were considered good enough to be enforced.
5.2. Possible Contemporary Implications
5.2.1. Europe
The conditions set by the European Union (EU) for the eastern European states to join the EUFootnote 122 convey a contemporary manifestation of limited sovereignty. While UN membership required merely that states be ‘peace-loving states’, ‘which accept the obligations contained in the present Charter … able and willing to carry out these obligations’,Footnote 123 the EU established new standards.Footnote 124 Becoming part of the EU requires subscribing to ‘the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights’.Footnote 125 Note the order of commitments, which I will discuss below. Joining the EU not only includes subscribing to supranational laws and norms (such as a commitment to respect minorities), but also submission to powerful regional judicial review and compliance with rulings of the European Court of Human Rights (ECtHR).
In the ensuing vetting process, strong sovereign states convinced weak states to give up an element of their sovereignty in order to enjoy the benefits of EU membership. In effect, this was a manifestation of benevolent strong states using their power to guide nations, without violence or exploitation, to limited but strong national political expression, without striving for full sovereignty.
However, this is only part of the picture. The established states, now in the role of guides, underwent a similar process voluntarily. The United Kingdom's subscription to membership of the EU and the jurisdiction of the ECtHR changed the well-established British legal and political system by restricting the sovereignty of its Parliament.Footnote 126 The EU states restricted their own sovereignty, intervened in a major conflict (Yugoslavia) in the name of humanity and justice, and then used soft powerFootnote 127 vis-à-vis the candidate states.
EU members have set an example by relinquishing some of their sovereignty in creating the EU, and thus could easily recommend and demand the same from aspiring candidates. This is an interesting manifestation of the idea of voluntary weakness as a source for political and cultural (non-violent) power, and is also precisely what Breuer urged the Jewish people in Palestine to do. Breuer, who championed the establishment of strong international institutions that promote justice and hold states accountable, would see the high status of the ECtHR as an important evolution of his ideas.
5.2.2. The Trusteeship Council and the mandate system
I think that Breuer would see the resurgence of the idea of ‘trustees of humanity’ as very positive. He would less like its connection with sovereignty, even though contemporary sovereignty is (a little) more restricted by international rule of law and global justice than the term implied in his time. Breuer can be seen as an antecedent to voices in contemporary debates, and as a voice still worth listening to across the years.
For Breuer, obligations towards humanity and justice stem neither from agreement regarding the distribution of power nor from the sovereignty of the state. It is obligation, rather than power, that precedes the state and is the raison d'etre of its establishment. It is the existence of major problems and needs, which can be addressed only by states, which justifies the creation of states and should guide their development and use of power.
In the case of humanitarian intervention,Footnote 128 use of force raises questions of the justification and prevention of excessive force and the abuse of power. Two developments – the trend towards coalitions and the growing need for an institutional decision – seem to be congruent with Breuer's analysis. Both serve to restrict each state's power, and give a legal justification for the restricted and regulated use of power. The coalitions, which replace the mechanism in the UN Charter for collective use of force, require negotiation and compromise, ensuring more rational decision making, and restricting abuse for particular domestic interests. Further, the publication involved enables global oversight, political and juridical review and feedback from public opinion. The Russian demand to precede the action to disarm Syria of its chemical weapons with a decision by the Security Council also served to achieve similar objectives.Footnote 129 I argue that these are manifestations of Breuer's principles of limited sovereignty, the supremacy of justice, humanity and the importance of the institutions that seek to promote them. Following Breuer, I would, however, suggest the need to change terms. In contemporary discourse it seems self-evident and justified for states to further their own needs and interests, and express their sovereignty. This is why now, more than ever, we might benefit from a reframing such as that proposed by Breuer, in which citizens of states will perceive global obligations, and the subservience of state needs to international needs and norms, as self-evident.Footnote 130
In light of these developments, the international reaction to the collapse of states and the re-emergence of areas without effective government poses a different global challenge, mentioned in the introduction to this article. These areas are the focus of humanitarian crises, war crimes and crimes against humanity. The present article supports proposals to renew the concept of the Trusteeship Council and assign to it a significant role in managing those territories, using evolved versions of the original trustee system.Footnote 131 As both the question of the sovereignty of the trustee and the sovereignty of the administrated populations and territories loom large in this debate, Breuer's critique and insights, developed and adapted through historical analysis within his theoretical framework as proposed in this article, have the potential to enrich this debate.
