¹ R Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press, Oxford, 2008); C Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press, Cambridge, 2008); GH Fox, Humanitarian Occupation (Cambridge University Press, Cambridge, 2008).

² B Kingsbury, N Krisch and RB Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15, 19.

³ Panel on United Nations Peace Operations, Report to the United Nations Secretary-General (21 August 2000) UN Doc A/55/305-S/2000/809 (the Brahimi Report) para 77, cited in Wilde (n 1) 33.

⁴ ibid.

⁵ M Ydit, Internationalised Territories from the ‘Free City of Cracow’ to the ‘Free City of Berlin’: A Study in the Historical Development of a Modern Notion in International Law and International Relations (1815–1960) (Sythoff, Leyden, 1961).

⁶ For the long history of the claim that control over and title to territory should be treated as inseparable, see A Orford, ‘Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect’ (2009) 30 Michigan Journal of International Law 981.

⁷ Lauterpacht, E, ‘The Contemporary Practice of the United Kingdom in the Field of International Law—Survey and Comment’ (1956) 5 ICLQ 405, 410CrossRefGoogle Scholar.

⁸ ibid.

⁹ ibid.

¹⁰ ibid.

¹¹ ibid.

¹² For discussion of the tradition of Indian resistance to British colonial administration as ‘unBritish rule’ see M Mukherjee, ‘Justice, War, and the Imperium: India and Britain in Edmund Burke's Prosecutorial Speeches in the Impeachment Trial of Warren Hastings’ (2005) 23 Law and History Review 589, 595. Mukherjee points to the influence of texts such as D Naoroji's Poverty and Un-British Rule in India (S Sonnenschein, London, 1901) which argued that the ‘economic and administrative policies of the British government in nineteenth-century India’ had drained wealth from the colony to the metropolis and led to ‘widespread poverty in the subcontinent’. The point was not that the government was alien or British but that in fact it wasn't British, that is, it didn't apply the principles applied in the metropolis to government of the colony.

¹³ Burroughs, P, ‘David Fieldhouse and the Business of Empire’ (1998) 26 Journal of Imperial and Commonwealth History 6, 12CrossRefGoogle Scholar.

¹⁴ E Meiksins Wood, Empire of Capital (Verso, London, 2003) 5.

¹⁵ ibid 4.

¹⁶ ibid.

¹⁷ For the suggestion that ‘[e]xamining law as a particular codification of social relations that provides an abstract framework for the exercize of power means that law can testify on the latter's character’, see Boukalas, C, ‘Counterterrorism legislation and the US state form: Authoritarian statism, phase 3’ (2008) 151 Radical Philosophy 31, 38Google Scholar.

¹⁸ For analyses of the imperialist legacies of international economic ordering that attempt to move between public and private international laws and bodies, see A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, Cambridge, 2004); A Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge University Press, Cambridge, 2003); Shalakany, AA ‘Arbitration and the Third World: A Plea for Reassessing Bias Under the Specter of Neoliberalism’ (2000) 41 Harvard International Law Journal 419Google Scholar.

¹⁹ W Bain, Between Anarchy and Society: Trusteeship and the Obligations of Power (Oxford University Press, Oxford, 2003) 2.

²⁰ For a discussion of the way in which critical writing on humanitarian internationalism can have this effect, see Jenny Edkins, Whose Hunger? Concepts of Famine, Practices of Aid (University of Minnesota Press, Minneapolis and London, 2000) xvi–xvii, 159.

²¹ A de Waal, Famine Crimes: Politics and the Disaster Relief Industry in Africa (African Rights & The International African Institute, London, 1997) xvi.

²² SR Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War (St Martin's Press, New York, 1995) 30.

²³ ibid.

²⁴ ICJ, Reparations for injuries suffered in the service of the United Nations (Advisory Opinion) ICJ Rep 1949, 174, 182.

²⁵ See further ICJ, Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) ICJ Rep 1962, 151, 168: ‘Save as they have entrusted the Organization with the attainment of these common ends, the Member States retain their freedom of action. But when the Organization take action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’.

²⁶ For a critique of these tendencies in the broader field of humanitarian internationalism, see Edkins (n 20) xvii.

²⁷ For the argument that ongoing limitations on contact with detainees facilitated torture or ill-treatment of detainees by US and UK forces and by Iraqi authorities, see Amnesty International, Beyond Abu Ghraib: detention and torture in Iraq, March 2006, available at http://www.amnesty.org/en/library/info/MDE14/001/2006.

²⁸ The reasons for the UN's attempt to reduce the influence of FRETILIN are unclear. FRETILIN (Frente Revolucionária do Timor-Leste Independente or Revolutionary Front for an Independent East Timor) was the most popular of the groups contesting power during the preparations for Timorese independence in 1974. On 28 November 1975, in the context of repeated cross-border attacks by Indonesian special forces seeking to provoke civil war and thus provide an alibi for intervention, FRETILIN declared Timor's independence. A little over a week later, on 7 December 1975, Indonesia launched a general invasion of Timor, carried out with the knowledge and tacit support of the US, UK and Australian governments. This support was motivated by issues of regional security, concern that an independent Timor might align itself with China and, in the case of Australia, the desire to secure access to Timor Sea oil and gas. In the democratic elections for the Constituent Assembly held in 2001, FRETILIN won 57 per cent of the vote, and its Secretary-General Mari Alkatiri became Chief Minister. On 20 May 2002, Timor-Leste formally gained its independence and Alkatiri became Prime Minister of the new State. Alkatiri was unpopular with the Australian government and was forced from office during the crisis of 2006. See further A Orford, ‘What Can We Do to Stop People Harming Others? Humanitarian Intervention in Timor-Leste (East Timor)’ in J Edkins and M Zehfuss (eds), Global Politics: A New Introduction (Routledge, London and New York, 2009) 427.

²⁹ For the genealogy of this conception of governance of the Third World as a means of achieving goals that concern ‘the international community as a whole’ see JL Beard, The Political Economy of Desire: International Law, Development and the Nation State (Cavendish-Routledge, London, 2006).

³⁰ For a strong critique of an approach to international security that assumes ‘we know (or can reliably ascertain) those social conditions in which security flourishes’, that everybody would agree on what those conditions are and that everyone would agree that achieving security is always more important than anything else see Koskenniemi, M, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’ (1995) 6 EJIL 1, 19CrossRefGoogle Scholar.

³¹ D Chandler, Hollow Hegemony: Rethinking Global Politics, Power and Resistance (Pluto Press, London, 2009) 186 (critiquing the representation of foreign policy as an expression of values).

³² Covenant of the League of Nations, art 22.

³³ See W Roger Louis, Ends of British Imperialism: The Scramble for Empire, Suez and Decolonization (I B Tauris, London, 2006) 205–213 (discussing statements in the Minutes of the Imperial War Cabinet and Eastern Committee of December 1918, suggesting that the British government had many official reasons for deciding to support the Mandate system—the desire to gain American support for British colonial affairs, the concern that imperial contests for territory in Africa, Asia and the Middle East were a serious threat to peace, the recognition that self-determination was a legitimate claim of peoples in Europe and the Middle East and the belief that self-determination had no application to the ‘undeveloped and unorganised’ peoples of the Pacific, Africa and Asia.).

³⁴ For an attempt to develop such an account see A Carty, ‘Distance and Contemporaneity in Exploring the Practice of States: The British Archives in Relation to the 1957 Oman and Muscan Incident’ (2005) 9 Singapore Year Book of International Law 1, 3 (suggesting that without access to the ‘full picture’, involving both verbal positions taken by organs of States as well as knowledge of what the State has actually done, ‘the actions of a State, such as the UK, may be unintelligible’).

³⁵ Sir Butler, G, ‘Sovereignty and the League of Nations’ (1920–1921) British Yearbook of International Law 35, 40Google Scholar.

³⁶ See further Orford (n 6).

³⁷ ICJ, International status of South-West Africa (Advisory Opinion) ICJ Rep 1950, 128, 150 (separate opinion of Sir Arnold McNair).

³⁸ Koskenniemi (n 30) 21.

³⁹ M Koskenniemi, From Apology to Utopia (2^nd edn, Cambridge University Press, Cambridge, 2005).

⁴⁰ ibid 21.

⁴¹ F Engels, ‘On Authority’ in Robert C Tucker (ed), The Marx-Engels Reader (2^nd edn, WW Norton and Co, New York, 1978) 730, 733.

⁴² For an account of international territorial administration that does explore the formal status of administered territories, see B Knoll, The Legal Status of Territories Subject to Administration by International Organisations (Cambridge University Press, Cambridge, 2008) (arguing that the status of such territories is defined by the fact that the ‘international legal order reaches the objects of its concerns directly, through its organ, without the constraining mediation of a sovereign state structure’, at 412).

⁴³ Koskenniemi, M, ‘Occupied Zone—“A Zone of Reasonableness”?’ (2008) 41 Israel Law Review 13, 31–32CrossRefGoogle Scholar.

⁴⁴ C Schmitt, ‘Ethic of State and Pluralistic State’ in C Mouffe (ed), The Challenge of Carl Schmitt (Verso, London, 1999) 196.

⁴⁵ Koskenniemi, M, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1, 23CrossRefGoogle Scholar.

⁴⁶ H Laski, ‘The Responsibility of the State in England’ (1919) 32 Harvard Law Review 447, 451.

⁴⁷ ibid 452.

⁴⁸ ibid.

⁴⁹ C Harlow, ‘The Crown: Wrong Once Again?’ (1977) 40 Modern Law Review 728, 729–730.

⁵⁰ Laski (n 46) 450.

⁵¹ ibid 451.

⁵² ibid.

⁵³ Cohen, F, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia Law Review 809, 825CrossRefGoogle Scholar.

⁵⁴ ibid.

⁵⁵ ibid 823.

⁵⁶ ibid 827.

⁵⁷ ibid 809, 827.

⁵⁸ AA Berle Jr and GC Means, The Modern Corporation and Private Property (The MacMillan Company, New York, 1933) 4.

⁵⁹ ibid 7.

⁶⁰ ibid 7–8.

⁶¹ ibid 4.

⁶² F Neumann, Behemoth: The Structure and Practice of National Socialism 1933–1944 (Harper and Row, New York, 1944) 284–285.

⁶³ Berle Jr and Means (n 58) 119; ibid 285.

⁶⁴ AD Chandler Jr, The Visible Hand: The Managerial Revolution in American Business (Belknap Press, Cambridge, 1977) 9.

⁶⁵ J Murphy, ‘The Rise of the Global Managers’ in S Dar and B Cooke (eds), The New Development Management (Zed Books, London, 2008) 18, 19–21.

⁶⁶ Berle Jr and Means (n 58) 121, 353.

⁶⁷ See, for example, VI Lenin, The State and Revolution (trans Robert Service, Penguin Books, London, 1992); J Burnham, The Managerial Revolution (New York, John Day Company, 1941).

⁶⁸ A Prasad and P Prasad, ‘The Empire of Organizations and the Organization of Empires: Postcolonial Considerations on Theorizing Workplace Resistance’ in A Prasad, Postcolonial Theory and Organizational Analysis: A Critical Engagement (Palgrave MacMillan, New York, 2003) 95, 97.

⁶⁹ R Kerr, ‘International Development and the New Public Management: Projects and Logframes as Discursive Technologies of Governance’ in S Dar and B Cooke (eds), The New Development Management (Zed Books, London, 2008) 91.

⁷⁰ ibid 96.

⁷¹ M Power, The Audit Society: Rituals of Verification (Oxford University Press, Oxford, 1997); D Neu, ‘Accounting for the Banal: Financial Techniques as Softwares of Colonialism’ in A Prasad, Postcolonial Theory and Organizational Analysis: A Critical Engagement (Palgrave MacMillan, New York, 2003) 193.

⁷² Kerr (n 69) 94.

⁷³ On the intensification of managerialism and administration as techniques of rule in and through the UN, see further A Orford, International Authority and the Responsibility to Protect (Cambridge University Press, Cambridge, forthcoming 2010). For the related argument that the ‘scope and coherence’ of managerialism has ‘expanded exponentially in recent years’, and that the World Bank ‘has not only incorporated key postbureaucratic disciplinary strategies into its internal practices, but also externalised them’ see Jonathan Murphy, ‘The Rise of the Global Managers’ in S Dar and B Cooke, The New Development Management (Zed Books, London, 2008) 18, 18–19.

⁷⁴ B Cooke, ‘Participatory Management as Colonial Administration’ in S Dar and B Cooke, The New Development Management (Zed Books, London, 2008) 111.

⁷⁵ M Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press, Princeton, 1996) 16.

⁷⁶ ibid.

⁷⁷ M Mamdani, Saviors and Survivors: Darfur, Politics, and the War on Terror (Pantheon, New York, 2009) 277.

⁷⁸ Mamdani (n 75) 62.

⁷⁹ Mamdani (n 77) 277.

⁸⁰ ibid.

⁸¹ For an account, see R Chandrasekaran, Imperial Life in the Emerald City: Inside Baghdad's Green Zone (Bloomsbury, London, 2007).

⁸² Berle Jr and Means (n 58) 353.

⁸³ ibid.

⁸⁴ Kingbury, Krisch and Stewart (n 2) 51–2.

⁸⁵ M Stolleis, A History of Public Law in Germany 1914–1945 (trans Thomas Dunlap, Oxford University Press, Oxford, 2004) 373.

⁸⁶ ibid 373, 375.

⁸⁷ C Schmitt, The Crisis of Parliamentary Democracy (trans Ellen Kennedy, MIT Press, Cambridge, 1988/1926).

⁸⁸ ibid 20–1.

⁸⁹ ibid 26.

⁹⁰ FL Neumann, ‘The Change in the Function of Law in Modern Society’ in WE Scheuerman (ed), The Rule of Law under Siege: Selected Essays of Franz L Neumann and Otto Kirchheimer (University of California Press, Berkeley, 1996) 101, 138.

⁹¹ Stolleis (n 85) 375.

⁹² ibid 373.

⁹³ ibid.

⁹⁴ ibid 386.

⁹⁵ ibid 374.

⁹⁶ For the argument that this is the question that functionalism avoids, see P Zumbansen, ‘Law after the Welfare State: Formalism, Functionalism, and the Ironic Turn of Reflexive Law’ (2008) LVI American Journal of Comparative Law 769, 783 (‘What functionalism does not answer is who the author of regulation should be’).

⁹⁷ Introduction to the Annual Report of the Secretary-General on the Work of the Organization, UN General Assembly Official Records, 16^th session, UN Doc A/4800/Add.1 (1961).

⁹⁸ DN Levine, ‘The Continuing Challenge of Weber's Theory of Rational Action’ in C Camic, PS Gorski and DM Trubek (eds), Max Weber's “Economy and Society”: A Critical Companion (Stanford University Press, Stanford, 2005) 101, 116.

⁹⁹ For an elaboration of the history of the concept of status, and why it might be a useful concept to use in seeking to grasp the forms of rule instituted by international authority in the decolonised world, see further Orford (n 73).

¹⁰⁰ Stolleis (n 85) 374.