TY - JOUR
AU - Nouwen, Sarah, MH
AB - Abstract According to the dominant narrative, the right of self-determination became relevant as a matter of law only after the 1960s or even only in the early 1970s. However, by reviving a seemingly forgotten episode in the legal history of self-determination, this article shows that during the UN Security Council’s second year of operation, in 1947, the United Kingdom invoked the right of self-determination of another people, the Sudanese, as their legal entitlement, in its effort to counter Egyptian claims on the Sudan. Giving a strong voice to primary sources, this article narrates how British officials in the Sudan managed to promote the idea of Sudanese self-determination in London, even if only to serve, not challenge, their own colonial power and behaviour. They were so successful in doing this that the British Government, despite the UK's strategic and colonial interests, ultimately invoked self-determination as part of its legal argumentation in the Security Council.  These are gains which angels greet, As joyously such deeds they see, Inscribed upon the balance sheet Which lies in Heaven’s chancery. Let these suffice for Britain’s need, No nobler prize was ever won, The blessing of a people freed, The consciousness of duty done. JSR Duncan, citing Evelyn Baring, 1st Earl of Cromer1 I. Introduction The night of 1 October 1955 was a special occasion for the British administration in the Sudan.2 As British regiments had been leaving the country throughout the autumn of 1955, a cocktail party was held with the Royal Leicestershire Regiment carrying out the Beating of Retreat. In a personal letter to GD Lampen, Sudan Agent in London, JSR Duncan, one of the last British administrators to leave the Sudan, described how British and Sudanese troops had together marched and played Land of Hope and Glory and the Last Post, commenting: ‘So good was it all and so charged with feeling that the audience, Sudanese and British alike, applauded.’3 Duncan recounted that the handing over of the Palace Guard to the Sudanese had been emotional, too: prominent Sudanese official Yahia El Fadli ‘had to dab two large tears with his handkerchief’.4 Almost a century after British troops had entered the Sudan to assist the Egyptians in suppressing a revolt, and after almost a decade of intense machinations and negotiations between the British, the Egyptians, and the Sudanese nationalist movement, Sudan was about to become independent. Concluding his letter on the note of ‘self-determination’, the British administrator quoted part of a poem by Lord Cromer, former Consul-General of the British Empire in Egypt: ‘no nobler prize was ever won // the blessing of a people freed // the consciousness of duty done’.5 It is rare to see a colonial power, in the era of decolonization, champion self-determination. Most of the time, colonial powers were not eager to celebrate, to put it mildly, the ‘blessing of a people freed’. However, as Duncan’s quotation illustrates, the British history in the Sudan reveals a curious and more nuanced story of British attitudes towards self-determination. When Egypt—a country that had experienced British imperial rule—sought to absorb the Sudan on the ground of titular sovereignty, Britain invoked self-determination as a legal right of the Sudanese in its negotiations with Egypt, and in the UN Security Council—even if mostly to further its own long-standing imperial strategy of keeping Egypt out of the Sudan. The legal literature on self-determination concentrates largely on the texts and circumstances of the classic UN General Assembly resolutions of the 1960s and 1970s.6 Lawyers have taken relatively little interest in the years prior to these developments, and seemingly justifiably so; even if these years enrich historically our understanding of self-determination as it later developed, most of the ‘real’ action for lawyers’ purposes, that is the legally relevant action, seems to have taken place in the 1960s and the 1970s, with the aforementioned resolutions, and the judgments and opinions of the International Court of Justice,7 at the centre of attention.8 This article shows, however, that self-determination was invoked as a distinctly legal concept in the late 1940s. The doctrinal history should thus begin a few years earlier than what is usually assumed. This blind spot in lawyers’ historical accounts is not remedied by modern historiography on self-determination, since this has also generally omitted the Sudan from its narrative of the concept’s development. This historiography has progressively turned to the late 1940s and early 1950s as a highly formative period, focusing on the debates surrounding the Universal Declaration of Human Rights and the negotiation of the two Human Rights Covenants, and General Assembly Resolution 637 (VII).9 It broadly (and rightly) presents self-determination as the most important political objective of the anti-colonial movement and, despite the promises made in the 1941 Atlantic Charter, as anathema to Western colonial powers.10 Thus, whilst popular historical imagination envisages self-determination as a revolutionary ideal championed by the colonized but denied by the colonizers, in the case of the Sudan, the British propagated the Sudanese right to self-determination, albeit to serve, not challenge, their own colonial power and behaviour. The history rediscovered in this article also shows that British officials relied upon the Atlantic Charter’s reference to self-determination when formulating their policy on the Sudan in 1943–45. Key ideas about the need to consult the local population before a change to their status could be effected emanated directly from it. In order to understand how Britain came to invoke self-determination as a legal right in the UN Security Council, this article opens up the black box of the state. While lawyers, and sometimes historians, tend to discuss self-determination at the highest level of formal political expression by focusing primarily on treaties, resolutions, and debates in international fora, this article looks behind the mouthpiece of the state, delving into how officials within a state argued about and understood the concept in the early stages of its post-1941 development.11 Accordingly, the outward expression of the state’s position, namely the UK’s invocation of self-determination in the UN Security Council in 1947, represents this story’s climax, rather than its starting-point. The officials of the British-staffed Sudan Government12 were key actors in these developments. These officials made a series of important interventions in the course of 1942–47 in order to introduce Sudanese self-determination to the Foreign Office’s agenda. Making the most of its significant operational autonomy, the Sudan Government constantly pushed for the right of the Sudanese to self-determination, including their right to secede from Egypt, if they so wished, when Sudan Government officials thought that this promoted anti-Egyptian (but pro-British) nationalism. The Sudan Government’s acts in turn gave rise to a series of political and legal problems between Egypt and Britain that invited Foreign Office officials to develop arguments against the Egyptians, especially when Egypt referred their dispute to the UN Security Council. This episode from the history of self-determination is important not only for historians, but also for international lawyers. If, as James Crawford has argued, ‘the development of the right of self-determination has been above all a historical process’,13 the stories that international lawyers tell about self-determination shape the law. Digging up this seemingly-forgotten episode in the legal history of self-determination, this article demonstrates that significant international actors imbued self-determination with legal meaning soon after the UN Charter’s adoption, thus much earlier than what is normally assumed. The fact that the UK invoked the right of self-determination as a matter of international law in 1947 does not mean that self-determination crystallized as a right at this moment. The creation of customary international law has rightly been characterized as a ‘difficult and diffuse’ process; identifying the exact point in time when a new rule of customary international law comes into being (or, for that matter, when subsequent practice begins to affect the meaning of a treaty provision) is even more difficult.14 Therefore, this cannot be the aim of this article, based as it is on only one case study. Rather, the article adds a new chapter to the timeline of the legal history of self-determination: the Sudan case provides state practice relevant for the formation of self-determination as a right, predating the 1960s, the period when most legal histories of the right begin. The Sudan case thus also sheds new and revealing light on some of the UK’s recent arguments in advisory proceedings before the International Court of Justice on the question concerning the legal consequences of the separation of the Chagos Archipelago from Mauritius. Even if the UK was consistently objecting to references to self-determination as a legal right in the 1950s and 1960s,15 it could do so only by deviating from its own arguments on self-determination developed and espoused in the Sudan case. A few caveats are in order about interventions that this article does not seek to make. Focusing only on how the British came to propagate self-determination for the Sudan, this article does not purport to re-tell the broader story of how the Sudan emerged into statehood, a topic that historians have dealt with extensively.16 Nor is the purpose of this article to portray the UK as the greatest promoter of the right of self-determination. Rather, it argues that the brand of self-determination propagated by Britain was compatible with, and largely motivated by, paternalistic norms and colonial practices. Lastly, it is beyond the scope of this article to elaborate on the North-South dynamics in the Sudan in the period under consideration and to show how these would shape the Sudan’s subsequent history.17 The article proceeds as follows. Section II traces the origins of the British policy on self-determination with respect to the Sudan. It introduces the British governing apparatus in the Sudan, and some of the characteristics of the Sudan Political Service’s institutional ethos. It shows how British policy developed from rejection of Sudanese claims to self-determination to efforts to tame Sudanese nationalism and direct it against Egypt, in the context of Egypt, having freed itself from British occupation, making stronger and stronger sovereignty claims on the Sudan. Section III narrates how the intense negotiations that followed the Egyptian request to revise the Anglo-Egyptian Treaty of 1936 broke down on the point of Sudanese self-determination. It shows how British administrators in the Sudan ensured that British officials in London would not negotiate away, in their efforts to secure their position in the Suez Canal Zone, the Sudanese right to self-determination. Section IV then recounts Egypt’s referral of the situation of the British presence in Egypt and the Sudan to the UN Security Council in 1947 and the ensuing debates, culminating in the UK’s invocation of the Sudanese right of self-determination to thwart Egypt’s claim to sovereignty over the Sudan. By way of an afterword, the article briefly recounts the steps of the Sudan towards independence. Section V concludes. II. British Efforts to Identify, Foster and Represent the ‘Right’ Type of Sudanese Nationalism: A Prelude to Self-Determination The rise of nationalist and anti-imperialist sentiment in Egypt after World War I resonated strongly with Sudanese educated classes, leading to largely parallel developments in Egypt and the Sudan in the 1920s and 1930s.18 The British Administration’s response was to encourage a branch of Sudanese nationalism that promoted the Sudan’s separation from Egypt. At first this did not work out as the British expected: educated Sudanese soon became vocal anti-British advocates who envisaged a union—in an undefined form—with Egypt. Eventually the British favoured Sudanese sectarian elites who were fiercely anti-Egyptian as the best ambassadors of Sudanese nationalism, and designed new institutions to represent ‘responsible’ Sudanese political opinion. British policy during this era would lay the groundwork for imagining the Sudan as a separate entity, and a candidate for self-determination. A. Foundations of the British Administration in the Sudan The legal basis for Britain’s rule over the Sudan was provided in the 1899 Anglo-Egyptian Agreement, the legal fruit of a joint military operation between Britain and the rulers of Egypt. Having occupied Egypt in the 1880s, the British had set out in 1896 to restore Turkish-Egyptian rule in the Sudan, after a rebellion led by Muhammed Ahmad al-Mahdi had ousted it in 1885.19 Most of the funding for the campaign against the Mahdiya had come from Egyptian coffers, the majority of the troops had been part of the Egyptian army, and the operation had been carried out under the Egyptian flag. But Britain had provided the military leadership. Internationally, Britain had presented its role in the campaign as support for Turkish-Egyptian sovereignty over the Sudan, as illustrated by the fact that at the famous confrontation between the British-Egyptian force and a French expeditionary force at Fashoda in 1898—the climax of imperial territorial disputes between Britain and France in Eastern Africa—the British flew the Turkish-Egyptian, not the British, flag.20 In 1899 the Mahdiya was defeated, but, keen to hold sway over Egypt’s lifeline, the Nile, as a lever of control over the Suez Canal, Britain sought to justify its continued presence in the Sudan.21 The Anglo-Egyptian Agreement, concluded between the British Government and the government of the Khedive of Egypt, then occupied by Britain, did just that.22 Signed by Lord Cromer and Boutros Ghali Pasha,23 the Anglo-Egyptian Agreement led to what became known as the Anglo-Egyptian ‘condominium’ over the Sudan. The term ‘condominium’ did not appear in the Agreement itself, but was popularized by British officials in the aftermath of the Agreement. If understood as ‘joint sovereignty’, the term was misleading. The 1899 Agreement was expressed as concerning ‘the future administration of the Sudan’;24 it did not directly address Egypt’s long-standing sovereignty claim over the Sudan.25 Egyptian scholars had based this claim on a right of conquest, dating back to Muhammad Ali’s first campaigns in the region and the subsequent Ottoman firmans that recognized Egyptian rule.26 Britain’s internal bureaucratic arrangements reflected the fact that Britain did not consider the Sudan part of its imperial possessions: with Egypt being under the responsibility of the Foreign Office, the Sudan, Egypt’s possession, also became a responsibility of the Foreign Office, rather than the Colonial Office. Even if understood as merely referring to ‘joint administration’, the term condominium was misleading.27 The 1899 Agreement provided merely that the Khedive of Egypt would appoint a Governor-General on the recommendation of the British Government, which he could remove only with the consent of the British Government.28 In practice, the administration was dominated by the British. All Governors-General and their three secretaries (for financial, legal and civil affairs) in the Sudan from 1899 to 1955 were British nationals. So were the other members of the civilian corps of administrators that became known as ‘the Sudan Political Service’. As Robert Collins and James Mangan have demonstrated, the Sudan Political Service consisted, culturally and socially, of a fairly homogeneous group, most of them coming from the universities of Cambridge and Oxford, and around one third of them being the sons of clergymen.29 While Victorian moral ethics were increasingly falling out of fashion in Britain, they were deeply ingrained in the Sudan Political Service. Nearly all of the members of the Sudan Political Service came from families or professional classes that had their roots and traditions in the English countryside.30 As William Travis Hanes III argues, British administrators came to see themselves as a ‘combination of philosopher-kings, guardians and benign feudal barons or clan chiefs—in short, objective and disinterested “Fathers of the people”’.31 In addition to paternalism, it was political pragmatism that inspired the members of the Sudan Political Service: they ran a country as vast as one fifth of the European continent with fewer than 150 personnel in any one year on a tight budget, often in the face of opposition and nascent nationalism in a populace with which they had no cultural or ethnic connections.32 The Sudan Government and its Sudan Political Service enjoyed more autonomy than the administrations of official British colonies. The Foreign Office nominated the Governor-General, but lacked, unlike the Colonial Office with respect to its territories, any real interest in running the internal affairs of the country.33 Thus, the Sudan Government, while officially acting in the name of both Britain and Egypt, and, in terms of the nationality of its members, an extension of Britain, effectively became a third ‘dominus’ of the Sudan, with a will that was always independent of the Egyptian Government, but that also increasingly developed independently of the Foreign Office and Whitehall. B. The explosion of Egyptian nationalism and its resonance in the Sudan: the 1924 revolution In practice, the ‘sharing’ under the condominium arrangement was relatively straightforward as long as the British controlled both Egypt and the Sudan, but this changed soon after World War I. In 1914 Britain found itself theoretically at war with Egypt, given that Egypt was still a possession of the Ottoman Sultan, who had joined the war on Germany’s side. In response, Britain deposed the Egyptian leadership and unilaterally declared Egypt a protectorate. For burgeoning Egyptian nationalism this status was not sufficient.34 As soon as Egyptian nationalists realized that the British would not leave Egypt, the country fell into a state of turmoil with mob attacks against foreigners and occupying troops.35 One of the slogans of the nationalist revolt that forced Britain’s hand regarding Egyptian independence was ‘Unity of the Nile Valley’, referring to the union of Sudan and Egypt.36 In 1922 Britain recognized Egypt’s independence, albeit with major caveats: in addition to the country’s communications, defence, foreign relations, and the protection of foreign interests and minorities, the Sudan was a matter reserved for the discretion of Her Majesty’s Government.37 The fear of similar anti-British nationalism in the Sudan led the British to exclude Egyptians from the administration of the Sudan even more, but this was not enough to stem rising nationalism in the country. Several Western-educated Sudanese had drawn inspiration from Egypt’s nationalist struggle.38 Throughout the early summer of 1924, Sudanese nationalists organized a series of protests across the Sudan,39 campaigning under the seemingly contradictory banners of ‘Unity of the Nile Valley’ and ‘the Sudan for the Sudanese’. Whilst the former referred to unity with Egypt, and the latter to an independent Sudan, both banners demanded the departure of the British troops and administration.40 In June and July 1924, the British arrested the movement’s leaders and its most important members. The arrests led to a series of clashes across the country and a mutiny by Sudanese cadets at the Khartoum Military College in August. When, in November 1924, Egyptian nationalists in Cairo assassinated the Governor-General of the Sudan, Sir Lee Stack, known to be a proponent of the separation of the Sudan from Egypt,41 Britain demanded that Egypt withdraw its troops from the Sudan. The Egyptians departed without incident, but a battalion consisting of Sudanese soldiers refused to leave Khartoum. In a standoff, Hubert Huddleston, Acting Governor-General and sirdar of the army since Stack’s death, ordered his troops to open fire at the mutineering Sudanese soldiers. Many of them then barricaded themselves in the Khartoum Military Hospital, which the British shelled until it was destroyed, killing most of them. Once the resistance was quelled, the British executed three Sudanese officers following a court martial.42 The events of the summer and autumn of that year went down in history as the ‘1924 revolution’.43 The 1924 revolution, as well as the assassination of a British Governor-General by Egyptian nationalists, permanently entrenched antipathy towards anything Egyptian among the members of the Sudan Government and its Political Service. The British primarily attributed the revolution to the influence of the rebellious Egyptians. Having evicted the Egyptian army, the Sudan Government also restricted Egyptian access into the country and excluded Egyptians from the civil service, in which they had fulfilled low-level and technical roles.44De facto, the British were separating Sudan more and more from Egypt. However, despite demands of the Sudan Government to eliminate Egypt completely from the governance of the Sudan, the British political leadership in London decided to keep the governance arrangement of the 1899 Agreement in place.45 The revolution also led the Sudan Government to change its allegiances among the Sudanese.46 It began to co-opt Sudanese tribal leaders and religious leaders more actively, including, ironically, the descendants of the Mahdi, in an attempt to disempower the newer, and more nationalistic, educated class.47 For the same reason, it stopped its investments in developing such a class through education48—investments that had initially been inspired by a desire to have Sudanese, rather than Egyptians, fill the lower-level jobs in the administration. After the quashed revolution, it would take just over a decade for Sudanese nationalist sentiment to rise to the same level. C. The resurgence of Sudanese nationalism after the 1936 Anglo-Egyptian Treaty The seeds for the resurgence of Sudanese nationalism were sowed in a new treaty of alliance, signed in 1936 between the UK and Egypt, which would become known as the ‘Anglo-Egyptian Treaty’. After fourteen years of unsuccessful negotiations, it was the threat by a common enemy—Mussolini’s Italy, which was aspiring to a ‘New Rome’ stretching from Tripoli to Addis Ababa—that brought Egypt and Britain to this treaty of alliance.49 The Agreement primarily reflected the fact that Egypt had become independent—for instance, it created a legal basis for the continued presence of British forces to protect the Suez Canal. However, it also addressed the administration of the Sudan. While explicitly stating that ‘[n]othing in this article prejudices the question of sovereignty of the Sudan’, article 11(1) provided that ‘[t]he High Contracting Parties agree that the primary aim of their administration in the Sudan must be the welfare of the Sudanese’. For the Egyptians, this was a concession because the recognition of the Sudanese as an entity confirmed the creeping separation of the two countries. As the British Ambassador in Egypt would later say about the negotiations: ‘The Egyptians, though clearly believing it was a mere phrase, really did not like seeing it enshrined in the Treaty, but I put it there all right!’50 But the inclusion of this clause frustrated the Sudanese as well. As Hassan Ahmed Ibrahim attests, several Sudanese found this clause ironic and patronizing: it was included in a treaty provision affecting the future of the Sudan without the Sudanese having been consulted.51 The growing Sudanese national consciousness inspired the creation, in February 1938, of the Graduates’ General Congress. Its 1180 founding members were all Sudanese graduates, having completed a level of education beyond primary school.52 Since most of them were employed in the local administration, the Congress was predominantly an organization of Sudanese civil servants.53 Among the Sudanese, the organization had been propagated with a view to creating ‘a united front and a conference that will direct our destinies on the right track towards self-government’.54 But the drafters of its constitution made sure not to shock the British administrators, stressing as they did that the Congress was supposed to operate in a ‘spirit of friendly co-operation and obedience to the requirements of the law’.55 It worked. The Sudan Government found it ‘impolitic … to destroy the Congress’ and saw it as a potentially useful consultative body. It expected that in doing so it supported ‘moderate’ Sudanese nationalism—that is, Sudanese nationalism that resisted the Egyptians, and that was grateful for British administration—and thus counterbalanced the influence of Egypt and of Sudanese elites who were pro-independence.56 Thus, the Sudan Government’s Civil Secretary, Douglas Newbold, wrote in a memorandum addressed to governors and heads of departments that the Congress was ‘genuinely patriotic and in the best sense nationalistic’ and was to be accepted as an inescapable consequence of the ‘recognition implicit in the Anglo-Egyptian treaty that the Sudan is a separate political entity with an eventual political future’.57 But the British had misjudged both the character and the political orientation of the Graduates’ Congress, which soon developed into a vocal—radical in British eyes—platform for immediate independence and union with Egypt. D. Enter the Atlantic Charter: The Graduates’ Congress petitions Egypt and Britain to recognize the Sudan’s right of self-determination Emerging Sudanese nationalism was in sync with ideas that developed and proliferated internationally in the context of World War II. Writing in February 1942, Civil Secretary Newbold observed a notable change in Sudanese educated circles. ‘[W]e must start now taking note of the Atlantic Charter’,58 he warned the Sudan Agent, the Sudan Political Service’s representative in London. ‘Intelligentsia here and elsewhere will naturally want to cash in on it and the vernacular press in Khartoum and W. Africa is already doing so.’59 He proved prescient. On 3 April 1942, the president of the Graduates’ Congress, Ibrahim Ahmad, sent a memorandum to Sir Huddleston, who was by then Governor-General of the Sudan (after having been Acting Governor-General during the 1924 revolution). The memo recounted how ‘world developments and the events of the present war ha[d] inspired nations with a strong desire to assure humanitarian justice and the freedom of peoples’ and, probably alluding to the Atlantic Charter, how ‘this ha[d] been expressed in the statements of British politicians and recorded in the agreements of democratic leaders’. Claiming that it expressed ‘the desire of the Sudanese people’, the Congress’s memorandum included twelve desires, the first and most prominent of which was for the Sudan to be granted the right of self-determination: [T]he issue, on the first possible opportunity, by the British and Egyptian Governments, of a joint declaration, granting the Sudan, in its geographical boundaries, the right of self-determination, directly after this war … as well as guarantees assuring the Sudanese the right of determining their natural rights with Egypt in a special agreement between the Egyptian and Sudanese nations.60 The Congress’s memorandum put the British in a delicate position. On the one hand, the British were not comfortable with any demands for independence, especially while the war against the Axis powers was in full swing. On the other hand, disavowing Sudanese aspirations would risk pushing the Sudanese into Egypt’s arms.61 E. Introducing the idea of consulting the Sudanese over their future status: the seed of future British policy The Sudan Government’s response was Janus-faced: a paternalistic face towards the Sudanese; that of an activist representative towards the British Government. To the Graduates’ Congress, the message was that Governor-General Huddleston was unable to accept the memorandum because the Congress did not have standing to make such claims: as the Sudan Government had told the Congress already upon its founding in 1938, the Congress could not claim to represent the Sudanese people. The author of this response, Civil Secretary Newbold, also reminded the Congress that the requests contained in the memorandum concerned matters that could be altered only under international agreements between the co-domini.62 Mitigating the official rejection, Newbold added that the government was ‘fully aware of the needs of the Sudan and of the natural and legitimate desire of the enlightened Sudanese for an increasing participation in the Government’. But he followed that by writing that it was ‘the duty and business of the Sudan Government alone, having paramount regard to its tutelary obligations to the people of the Sudan … to decide the pace’ at which these developments were to take place.63 Alongside the stick came the carrot: Newbold assured Ahmad that ‘if the Condominium Powers at any time decide to review the Agreement or Treaty, the Sudan Government would hope to consult responsible Sudanese opinion’.64 Acting on Governor-General Huddleston’s instructions,65 Newbold had effectively introduced the idea of consulting the Sudanese in case their status was to be altered.66 However, despite having officially declined to receive the memorandum, Huddleston forwarded it to the British Ambassador in Egypt and High Commissioner for the Sudan, Sir Miles Lampson (soon to become Lord Killearn). Providing the context, he explained that the memorandum had been the ‘gravest’ incident in which ‘younger extremists’ had rushed the ‘saner’ members of the Congress into an act which ‘they had subsequent reason to regret’.67 According to Huddleston, the weight of Sudanese public opinion, including many members of the educated class and the Congress itself, had been ‘alarmed and indignant at the tone and content of the letter’ and, if polled, the ‘general opinion of the backbone of the country’ would be ‘in robust condemnation of the document’.68 That said, while repeating that the Sudan Government did not accept the Congress ‘as the legitimate mouthpiece of Sudanese nationalism’, Huddleston did present the memorandum as ‘evidence of the evolution of a genuine Sudanese nationalist feeling which must be taken more and more into consideration by the Sudan Government in its domestic policy’. Huddleston concluded by quoting ‘the Sudan’s leading personality’ El Sayed Sir Abdel Rahman-el-Mahdi Pasha, posthumous son of the Mahdi, who would become a key pro-British and anti-Egyptian figure in Sudanese politics, cautioning the Foreign Office not to reward Egypt for loyalty and services rendered during the war at the Sudan’s expense.69 Anticipating that Egypt would raise the issue of sovereignty over the Sudan after the war, the Foreign Office considered possible responses. The Atlantic Charter featured prominently in these considerations, laying the foundation for the shift towards legal argumentation when self-determination was included in the UN Charter. The head of the Egyptian desk at the Foreign Office, Patrick Scrivener, suggested that one option was to ‘exchange Egyptian sovereignty over Cyrenaica for exclusive British sovereignty over the Sudan’.70 But he quickly dismissed that path, on the basis of self-determination: ‘[If] we are to live up to the spirit of the Atlantic Charter, this would be a retrograde step’.71 For the same reason, Egyptian sovereignty over the Sudan would be ‘a retrograde step’, since Scrivener assumed, while stating it as fact, that Egyptian sovereignty ‘would be very unwelcome to the Sudanese’. Instead, he argued that the British should adopt Egypt’s slogan ‘complete independence for Egypt and the Sudan’, but interpret it differently to the Egyptians as a demand for independence for Egypt and independence for the Sudan.72 Thus, he opined, the ‘logical solution of the problem’ was ‘to vest sovereignty in the Sudanese themselves’.73 Explicitly citing the prescient letter from the Sudan Government’s Civil Secretary, Scrivener was following the advice of the Sudan Government.74 Higher levels of government were not (yet) of the same view as Scrivener. When similar language on the Atlantic Charter made it into a memorandum of the Egyptian Department titled ‘The Sudan’, the Superintending Under-Secretary of State for the Egyptian Department minuted: I don’t altogether like your para. 6 [referring to the Atlantic Charter]. So far as we’ve got in consideration of post-war arrangements, in the Pacific, and elsewhere, is that we are all agreed that the object to work for—the lowest common denominator as it were between U.S. policy and our own—is to secure independent British administration of our colonial territories subject to international supervision (but not international control). From this point of view, I don’t think that undivided British sovereignty over the Sudan would be a breach of the Atlantic Charter.75 Civil Secretary Newbold of the Sudan Government advanced a competing opinion: a change of status of the Sudan without consulting the Sudanese would be ‘impossible … with the Atlantic Charter in the background’.76 When it came to the Sudan, it was Newbold’s view that would prevail. In order to facilitate any future consultation, Newbold suggested creating a central advisory council for the Northern Sudan.77 Forwarding this to Lampson, the British Ambassador in Cairo, Governor-General Huddleston politely reminded him of his Government’s pledge to consult ‘responsible’ Sudanese opinion over any alteration of the Sudan’s status.78 Thus, instead of accepting the Graduates’ Congress as representatives, Huddleston proposed setting up a ‘General Advisory Council for the Northern States and the Province Councils’.79 Consultation was to take place on British terms in one other significant respect: the exclusion of representatives from the South, on the ground that the primitive circumstances there made consultation impossible.80 Accordingly, and with the blessing of the British Government, but without having consulted the Egyptian Government, the Sudan Government passed an ordinance in September 1943 to create the Advisory Council for the Northern Sudan.81 It stipulated that the Governor-General would serve as the Council’s president and would appoint its delegates, the majority of whom would be tribal leaders and notables.82 The Council’s mandate was purely advisory and the Government would set its agenda, determine its rules and could limit its debates at will.83 As Ahmed Ibrahim Abushouk suggests, the Graduates’ Congress viewed the Council as a puppet of the British that the latter would use as a means of splitting Sudanese public opinion and furthering their own interests.84 It also expressed concern about the fact that the ordinance creating the Council gave legislative form to what hitherto had been only a policy: the differentiated treatment of Northern and Southern Sudan.85 The Congress decided to boycott the new council and forbade its members from accepting any nomination to that organ.86 The Congress was right to suspect that the British were trying to undermine its brand of nationalism. After the Graduates’ Congress elections in 1944 had been won by Ismail-al-Azhari—later to become Sudan’s first elected prime minister—and his Ashiqqa party, running on a ticket of a ‘union with Egypt’,87 the British favoured the Umma (‘Nation’) party, which had been recently created on the basis of the principle of ‘the Sudan for the Sudanese’. A revival of an older movement, the Umma party largely drew its support from the Mahdist sect, led by El Sayed Sir Abdel Rahman-el-Mahdi Pasha, member of the famous Al-Mahdi family, which had traditionally feuded with the Mirghani family, associated with the Khatmiyya Sufi order and the Ashiqqa party. Writing to the assistant Sudan Agent in London, Civil Secretary Robertson (Newbold’s successor) considered the Umma party to be ‘on [their] side’, even though they were aware of the potential ‘embarrassment of the Mahdist connection’, as well as its leader’s apparent monarchic ambitions that were very unpopular with the majority of the Sudanese.88 Members of the Sudan Government dismissed the Congress as an organisation representing only a fraction of the educated class and ‘with which a large number of the more able and more level headed of the educated Sudanese refuse to be associated’.89 The Sudan Government would look for those ‘more level headed’ voices in the Advisory Council that it itself had created. Confronted with increasing Egyptian agitation, the Foreign Office realized that the ‘Sudan question’ was likely to become a more difficult issue in Anglo-Egyptian relations once the war ended. The Egyptians objected to the creation of the Advisory Council, both on account of the Sudan Government’s failure to seek Egyptian agreement and the apparent intention to divide the Sudan into two parts.90 The British Ambassador in Cairo advised the Foreign Office that in order to safeguard Britain’s geo-strategic interests, namely maintaining its presence in the Suez Canal, the central artery of the British Empire, Britain would have to outbid the Egyptians in the competition for the loyalty of the Sudanese.91 The way to do so, he had already advised two years earlier, was ‘to offer the Sudanese a more helpful prospect than Egypt can do’. Explicitly drawing on Civil Secretary Newbold’s reports, he had advocated for a policy to ensure that the Sudanese would support British, rather than Egyptian, rule, on the ground that ‘[w]hen the time comes for Egypt to formulate her claims in the Sudan, she will have to make her action conform to the Atlantic Charter in theory at any rate, and this would involve asking the Sudanese what they think about it.’92 For the Sudan Government, however, the Sudan’s future was not just a matter of imperial strategy and negotiating tactics, but also a matter of moral and normative concern. Writing to the British Ambassador in Cairo in December 1944, Governor-General Huddleston referred to the ‘moral obligation’ to maintain British presence in the Sudan until the Sudanese could decide their own future. Failing to do so would, according to Huddleston, jeopardize ‘the patient and successful work of 45 years, and [involve] the surrender of a virile and friendly people to a corrupt and inefficient Government before they can stand upon their own feet’.93 Throughout 1945, Huddleston continued to stress the same concerns to the Embassy in Cairo and the Foreign Office, reminding them of Britain’s ‘obligations’ towards the Sudanese; the Atlantic Charter; and the right of all nations to self-determination.94 For instance, in a memorandum of September 1945, Huddleston referred to his Government’s ‘obligations’ when urging the Foreign Office to develop a clear and long-term policy for the future of the Sudan: ‘The Sudan Government has deliberately encouraged Sudanese nationalism both in conformity with its obligations as trustee for the Sudanese and as a defence against Egyptian aspirations in the Sudan.’95 The Atlantic Charter figured prominently in Huddleston’s attempts to translate what he felt to be British obligations towards the Sudanese into demands that would be opposable to the Egyptians. He was confident that Egypt would be unable to deny any requests leading to the Sudanese deciding their own future status vis-à-vis Britain and Egypt, ‘[i]n the face of the Atlantic Charter, which [Egypt] herself has invoked’.96 Probably prompted by the fact that members of the Advisory Council had asked him whether the Council would be consulted before any new constitutional arrangements for the Sudan were made,97 Huddleston also recommended such consultation in his memorandum. He obtained the green light from the Foreign Office in London and the British Embassy in Cairo to respond in his capacity to the Council that ‘should the question of the future status of the Sudan be raised by the condominium powers in any revision of the Anglo-Egyptian treaty’ the Sudan would be consulted ‘through constitutional channels’, meaning the Advisory Council.98 The Governor-General’s writings to the British Embassy in Cairo and the Foreign Office in London in 1944–45 reveal that he was anxious to shape the British stance towards the Sudan in light of the expected renegotiation of the 1936 Treaty. The Sudan Government seemed to fear that if forced to choose between Britain’s interests in Egypt and the Sudan, the Foreign Office and the political leadership would prioritize the former over the latter because of geo-strategic considerations, specifically the maintenance of a British presence in the Suez Canal Zone.99 Having developed a strong self-image as the benevolent trustee of the Sudanese people, the Sudan Government impressed upon its superiors in Cairo and London that the British involvement in the Sudan was ‘constructive and continuous’ rather than ‘opportunist and casual’.100 The Sudan Government thus strived to insert its moral and normative understanding of the question of the future of the Sudan into London’s discussions. The key move to influence London in this respect was a fairly innocuous, procedural one: the Sudan Government’s pledge to consult the Sudanese in case their status would be altered. Merely by existing, the Advisory Council served as a permanent reminder of the need to consult ‘responsible’ Sudanese opinion, as well as proof that the Sudan constituted a separate entity from Egypt. Crucially, the Sudan Government also linked the question of the Sudan’s future to the Atlantic Charter, which would in turn lay the foundations for provisions on self-determination in the UN Charter. While the Foreign Office’s receptiveness to the idea of self-determination may have been enhanced by the fact that it was more directly exposed to the changing international order than, for instance, the Colonial Office,101 it was the Sudan Government, channelling Sudanese views, that promoted the idea of the relevance of self-determination within Whitehall and the British Government in the first place. III. ‘Why Should the Sudanese be Punished for Believing That we were Honest Men and not Bluffers?’: Negotiating Egyptian Sovereignty and Sudanese Self-Determination A. Initial Anglo-Egyptian negotiating positions over a new treaty Championing the right of the Sudanese to self-determination within the British Government was relatively easy when it seemed that Britain would be able both to accommodate its imperialistic interests in the region and keep Egypt out of the Sudan. This changed at the end of World War II. On 20 December 1945, against the background of public protests against the British role in the Nile Valley, Egypt officially asked Britain for the renegotiation of the 1936 Treaty. The Egyptian Government put forward two principal demands: the evacuation of all British troops from Egypt and the ‘Unity of the Nile Valley’, by which it meant the recognition of its sovereignty in the Sudan.102 The first issue, that of British presence in Egypt, became known as the ‘Egypt question’; the second as the ‘Sudan question’. For members of the opposition in Egypt, however, that presentation as such was already problematic. They viewed the two questions as one and the same: British occupation of the Nile Valley. In their view, the Egyptian Government had been far too weak in the presentation of its demands; in light of the recent UN Charter, the 1936 Treaty should just be abrogated.103 On the British Government side, the primary aspiration was to maintain the status quo. Initially, the newly-elected Labour Government under Clement Attlee was confident that it could emerge from the requested negotiations with its troops remaining in Egypt and the Egyptians out of the Sudan. In a memorandum introducing the Egyptian demands to the Cabinet, Secretary of State for Foreign Affairs Ernest Bevin wrote on the Sudan question that ‘it [was] out of the question … to recognize Egyptian sole sovereignty over the Sudanese’ and that ‘the future of the Sudan belongs neither to this country nor to Egypt, but to the Sudanese themselves, whose wishes must be taken into account in any new arrangements’.104 Bevin further suggested responding to the Egyptians with reference to the UN Charter’s definition of the trusteeship system (to which the present administration of the Sudan offers some analogy) as designed to promote the political, economic, social and educational advancement of the inhabitants … and their progressive development towards self-government or independence as may be appropriate to … the freely expressed wishes of the peoples concerned. The Egyptians would also be reminded of Huddleston’s promise to the Advisory Council of consultation of the Sudanese on the future status of the Sudan. Bevin suggested responding to the Egyptians that ‘the facts of the situation and modern international doctrine render academic … any prior discussion of the vexed question of sovereignty over the Sudan’. Modification of article 11 of the 1936 Treaty would have to wait until after such consultation.105 The British Government replied along these lines on 27 January 1946.106 B. A turbulent start to negotiations In Egypt, the announcement in March 1946 of Britain’s negotiating team spurred demonstrations, a change in prime minister, a general strike and violence against British personnel and property. Many Egyptians had interpreted Britain’s decision to appoint Lord Killearn, Britain’s Ambassador in Egypt, known for his interventions in Egyptian politics during the war, as a sign that Britain was not willing to negotiate as equals.107 In response to the violence, Britain replaced Lord Killearn with Sir Ronald Campbell. Following representations by Egypt’s new prime minister, Sidky Pasha,108 Foreign Secretary Bevin announced that he himself would lead the treaty renegotiations.109 Observing that Britain seemed to be adopting a somewhat compromising stance towards the Egyptians, the Sudan Government wanted guarantees that Sudan would not be handed over to Egypt. In February 1946, Huddleston suggested to the Foreign Office that the Foreign Secretary issue a public statement promising no change in the Sudan’s status without consultation. He included a draft statement. But the Foreign Office’s reply was: ‘Impossible now’.110 Meanwhile, Sudanese political actors, having heard of Britain’s agreement to renegotiate the 1936 Treaty, were determined to have their voices heard this time during negotiations that would affect their future.111 The Graduates’ Congress had already, in August 1945, made new demands for independence from Britain and union with Egypt. A month later the pro-union Ashiqqa party had won the Graduates’ Congress elections.112 The Sudan Government dismissed these developments on the by-then familiar ground that the Congress did not represent the Sudanese.113 But on the eve of the negotiations, several political groupings that had announced their intention to send their own representatives to the negotiations agreed on an all-party delegation that would ask the co-domini for a joint statement accepting the formation of a ‘free democratic Sudanese government in union with Egypt’.114 This request was a compromise among the Sudanese groups: whereas ‘union with Egypt’ for the Ashiqqa party, which dominated the Graduates’ Congress, meant ‘union under the Egyptian Crown’, the separatist Umma party was at best willing to accept a loose association.115 (Egypt, for its part, understood ‘union’ to mean not merely a federation under one crown, as the Sudanese unionists proposed, but ‘one nation, one government, one parliament, and one crown’).116 Yet despite its internal disagreements, this all-party delegation could seriously claim to represent the politically conscious Northern Sudanese.117 The Sudan Government’s line, however, was that even the ‘educated class’, when standing as one delegation, could not speak authoritatively for the Sudanese people, and the Sudan Government therefore discouraged the British Embassy in Cairo from having any official contact with the group.118 Although soon falling apart due to internal divisions, the Sudanese delegation achieved something that Huddleston himself had not been able to do: obtain a public policy statement from His Majesty’s Government (and not just the Governor-General) to reassure the Sudanese that the future of the Sudan would not be negotiated away.119 Concerned that such a statement might impede agreement on the British military presence in Egypt, the Embassy in Cairo had previously turned down Huddleston’s suggestion. However, alarmed by the upcoming arrival of the Sudanese delegation in Cairo, the Foreign Office figured that ignoring Sudanese public opinion could lead to increased political unrest in the Sudan.120 On 26 March 1946, Foreign Secretary Bevin made a statement in the British Parliament that followed, almost verbatim, Huddleston’s earlier draft.121 He declared that: ‘no change should be made in the status of the Sudan as a result of treaty revision until the Sudanese have been consulted through constitutional channels’.122 Thus, although London never directly granted Huddleston’s request for a pledge of consultation to the Sudanese, the statement in parliament was exactly that. It had been the Sudan Government that had coined the idea of consultation as well as the idea of an advisory council that Bevin’s speech now identified as ‘constitutional channels’. A couple of weeks after Bevin’s speech, Huddleston duly reaffirmed, before the Advisory Council, Bevin’s commitments to consult the Sudanese, and elaborated on other sentences in Bevin’s statement. But, in what was to become a pattern of behaviour, he also went far beyond anything that the Foreign Secretary had committed to. He suggested that the Sudan would first become a fully independent state and then decide its relationship with Egypt and Britain. He even sketched a tentative time-table for complete Sudanese independence: ‘I feel confident’, Huddleston said, ‘that in twenty years’ time the Sudanese will be governing their own country assisted and advised by a certain number of non-Sudanese specialists and technicians.’123 This marked a distinct shift in thinking about the issue: up to that point, consultation was mostly thought of as a procedural sideshow to the negotiations, and was not understood as going so far as to have a binding effect on the co-domini. But now Huddleston switched the order of things: independence first, ‘consultation’ (that is, a sovereign decision on the relationship with Egypt) later. Huddleston was pushing the envelope using every means at his disposal. C. Britain begins to reconsider its negotiating position, to the Sudan Government’s dismay The Egyptians were indignant at Huddleston’s behaviour. According to the Egyptian Government, Huddleston had overstepped his ‘administrative jurisdiction’ in making his statement without first consulting both co-domini.124 In the face of Egyptian outrage, even the British Embassy in Cairo refused to endorse Huddleston’s speech.125 Britain’s chief negotiator, Lord Stansgate, now realized that only a dramatic gesture would create the atmosphere required to secure a new military alliance with Egypt. On 7 May 1946, Prime Minister Attlee publicly offered to withdraw all British forces from Egypt (bar the Suez Canal Zone). Although the negotiations regarding the withdrawal of British troops still took the entire summer, by October, Bevin and his Egyptian counterpart Sidky Pasha had agreed on the ‘Egyptian question’, also known as the ‘military’ side of the new treaty. Final agreement would depend, however, on agreement on the Sudan question, which the parties had resolved to address in a separate protocol. And that agreement was not forthcoming.126 Preparing for the negotiations in July 1946, chief negotiator Lord Stansgate wrote to Prime Minister Attlee that ‘we may have to choose between receding on the Sudan issue or not having a Treaty of Alliance’.127 The Egyptians wanted the renegotiated treaty to recognise their sovereignty in the Sudan. Personally keen to get an agreement, but leading a minority government and confronted with a more nationalistic King, opposition and negotiating delegation, Sidky was publicly committed to including an explicit reference of Egyptian sovereignty over the Sudan in a new treaty, even if it was only a recognition of ‘symbolic sovereignty’, not affecting the internal administration of the Sudan.128 But the British Government preferred to leave the sovereignty question where it had been since the 1899 Agreement: on the shelf.129 It consulted its legal adviser, Eric Beckett, on Egypt’s sovereignty claim. In light of his response that ‘[t]he question of sovereignty in relation to the Sudan is legal and theoretical’ and that the outcome depended on which school in international law one supported on the definition of ‘sovereignty’, Attlee’s position was that ‘the United Kingdom are not concerned in theoretical questions, and refuse to commit themselves to any statement in the treaty about sovereignty over the Sudan which would inevitably be misunderstood and create more political difficulties than it would solve’.130 Whilst Attlee’s Cabinet agreed that the British negotiating delegation ‘should resist the inclusion in the Sudan Protocol of any provision implying recognition of Egyptian sovereignty over the Sudan’,131 Bevin, confronted with Egypt’s insistence, began to explore ways to accommodate Egyptian demands. In late August 1946, while at the Paris Peace Conference, Bevin studied his staff’s alternative drafts for the Sudan Protocol, some of which would recognize the King of Egypt as the ultimate sovereign of the Sudan.132 In response, he wrote: [W]e must have a clear picture in our minds of what we wish the future of the Sudan to be. I am not, for instance, convinced that independence is the best solution … Provided our defence interests in Egypt are sufficiently secured … I am not sure that our interests would not be best served by the Union of the Sudan with Egypt. ‘I have been considering’, Bevin continued, ‘whether it would be possible to have a form of words which would acknowledge the sovereignty of Egypt while also acknowledging the position of Great Britain as co-administrator’.133 A nightmare scenario for the Sudan Government was beginning to take shape. As Bevin was searching for compromises, the Egyptian delegation became more impatient, infuriated by an incident orchestrated by James Robertson.134 The Civil Secretary of the Sudan Government had circulated preliminary reports of the Sudan Administration Conference, a conference among prominent Sudanese that Huddleston had organized on the future of administration in the Sudan, among members of the Sudan Political Service, prominent Sudanese and the Foreign Office. Robertson did so knowing that these reports had not yet been presented to the Governor-General, let alone Egypt, and were likely to find their way to the press. The Egyptians saw Robertson’s move—informing one co-dominus while keeping the other in the dark—as another instance of the Sudan Government’s partiality.135 The Egyptians therefore rejected a new draft that Bevin had presented, demanding that sovereignty be dealt with explicitly instead of merely in a without-prejudice clause.136 They also insisted on a greater role for Egypt in preparing the Sudanese for self-government.137 The Egyptian delegation leaked the draft protocol proposed by the UK to the press, and people in Cairo took to the streets.138 In order to break the deadlock, Bevin and the British negotiating team agreed to propose a protocol that separated sovereignty and administration, recognizing Egypt’s and Britain’s different rights in each domain. Chief negotiator Stansgate argued that ‘in their minds the Foreign Office had always acknowledged Egyptian sovereignty, though they had prevented the Egyptians from exercising it’.139 While previous British drafts for the Sudan Protocol had implied dual sovereignty—an understanding that had been propagated by the Sudan Government since 1924140—the minutes of this Foreign Office meeting stated that ‘it was recognized that in order to obtain a Treaty at all it was necessary that sovereignty should be conceded to the Egyptians in some form’.141 What was left for the British delegation was to try to square the circle of recognizing Egyptian sovereignty as well as securing in some way the right of the Sudanese to determine their future status.142 The news of the change in British policy on the recognition of Egyptian sovereignty caused fury among members of the Sudan Government. Robertson wrote in his diary: ‘Mr Bevin intended to do what he knew to be wrong: to sell the Sudan to Egypt to buy his Treaty.’143 In London at the time, Robertson and Huddleston were told by Sir Orme Sargent, Permanent Under-Secretary of State, that ‘the benefit of a Treaty with Egypt was so great from the general world viewpoint, that the Secretary of State wished to get one if possible’.144 Whilst the legal adviser had tried to reassure them that a concession of Egyptian sovereignty did not alter the status of the Sudan—in which case, the Sudanese would have had to be consulted, per Huddleston’s promise—Robertson thought that the concession would alter the status, ‘in that H.M.G. thereby admit what they have never admitted before’, and predicted troubles with the pro-independence Umma party.145 The Sudan Government’s Legal Secretary appealed to London to stop the ‘betrayal’.146 D. Self-Determination, the stillborn Bevin-Sidky Protocol and the Sudan Government’s final gambit to influence the negotiations In late October 1946, Sidky Pasha went to London to meet Bevin in person, leaving his more intransigent negotiating delegation at home, in a last-ditch attempt to reach an agreement. Between 18 and 24 October 1946, Bevin and Sidky held five meetings. In the second meeting, Bevin pointed out to Sidky that ‘should the Sudanese decide on independence, Egyptian sovereignty must necessarily go’. According to the Foreign Office records, Bevin told Sidky: ‘in Great Britain we ha[ve] always insisted upon the right of a dependent nation, on reaching the status of self-government, to secede if it so wished’.147 And he reminded Sidky of events in India. Sidky replied that ‘the right of secession would be a voluntary action on the part of Egypt’ and that it was for future generations to decide who would be sovereign over the Sudan. But Bevin repeated that ‘the position must not be brought about in which the Sudan, struggling for independence, would forever be under Egypt’. Bevin explicitly referred to the concept of self-determination: he ‘wanted to make it quite clear to the British people that nothing was being done to prejudice the right of self-determination’. Sidky replied that ‘[n]othing on paper could prejudice the right of independence nor could it bind a people in search of liberty. It was a universal principle and not a matter for incorporation in a treaty.’148 But Bevin responded that ‘the reference to the spirit of the Atlantic Charter should be incorporated in the treaty’.149 In the evening after that meeting, Bevin asked the Lord Chancellor, Lord Jowitt, for an opinion on the juridical position of Sudan, ‘in order to bring out quite clearly what would be the position of the United Kingdom if the Egyptians thought fit to refer this question to the United Nations Organisation or to an international court’.150 Jowitt prefaced his opinion with the caution that ‘there is no subject on which lawyers are more divided than this question of sovereignty’. How the question would be answered depended on whether one saw sovereignty as the authority to govern, in which case it could be shared, or as juridical sovereignty that can lie only with one power. As a matter of title to territory, however, he concluded that the title had originally been Egyptian and that it had not been shown that that title had been transferred from Egypt to the UK.151 In a Cabinet Defence Committee meeting two days later, Bevin reported that in light of Jowitt’s legal opinion and agreement reached on defence clauses, he had authorized his officials to draft with the Egyptians a mutually acceptable form of words ‘which would convey a certain measure of our recognition of the King of Egypt’s sovereignty over the Sudan, but which would not prejudice our position in the territory, or the ultimate freedom of the inhabitants to choose the form of status they wished’.152 Bevin himself had redrafted a clause presented to him by the Egyptians, adding: ‘Nothing in this Protocol shall affect the present status of the Sudan, nor impair the right of the Sudanese people, when deciding the future status of the Sudan, to choose in accordance with the principles of the Atlantic Charter the complete independence of their country.’153 Prime Minister Attlee commented that ‘he had never thought that there was doubt about the rights of Egyptian sovereignty over the Sudan’, adding that ‘[t]here had recently been a tendency to press our claims in this connection further than was supported by the facts’.154 The Cabinet Defence Committee authorized Bevin to negotiate a clause along the lines he had suggested.155 That same evening of 24 October, Bevin met with Sidky at Claridge’s, Sidky’s hotel. According to the Foreign Office records, Bevin told Sidky that ‘it was of great importance to him’—understandably, given his March 1946 statement in the House of Commons—‘that it should be possible to explain clearly to the Sudanese people and to the British Parliament that nothing agreed now in the Treaty changed the status of the Sudan’.156 Sidky replied that indeed there was no change of status—the existing status was merely affirmed.157 After clarifying that any recognition of Egyptian sovereignty would not lead the Egyptians to argue that British soldiers had to leave the Sudan, too—for ‘it was very important for the whole strategic arrangement in the Middle East that Great Britain should be able to retain troops in the Sudan’—agreement was reached on a formula on the outstanding issue in the Sudan Protocol. The formula read: The policy which the High Contracting Parties undertake to follow in the Sudan (within the framework of the unity between the Sudan and Egypt under the common Crown of Egypt) will have for its essential objectives to assure the wellbeing of the Sudanese, the development of their interests and their active preparation for self-government and consequently the exercise of the right to choose the future status of the Sudan.158 Bevin’s without-prejudice clause—‘Nothing in this Protocol shall affect the present status of the Sudan, nor impair the right of the Sudanese people, when deciding the future status of the Sudan, to choose in accordance with the principles of the Atlantic Charter the complete independence of their country’—did not make it into the Agreement: Sidky had successfully struck it out.159 With agreement on the Sudan question, both sides pledged that they would submit the draft Anglo-Egyptian Treaty, the Evacuation Protocol and the Sudan Protocol to their parliaments for ratification. But as soon as the two sides left the negotiating table, it became apparent that their understanding of the Sudan Protocol differed substantially. Before Sidky landed in Cairo, the Egyptian press had already reported that he had succeeded ‘in bringing the Sudan to Egypt’.160 After his encounter with the press, Sidky was quoted as claiming that ‘[i]t has definitely been decided to achieve unity between Egypt and Sudan under the Egyptian Crown’. While some of this appears to have been misquoted, there was no mention in Egypt of self-government or the right of the Sudanese to choose their future status, much to the displeasure of the Foreign Office and the Sudan Government, let alone nationalist groups in the Sudan.161 Furthermore, the Egyptian press translated the word ‘sovereignty’ with the Arabic word seyada, which in colloquial Sudanese Arabic denoted a master-slave relationship. It was in this latter sense that the pro-independence Umma party interpreted the word, reported the Sudan Government to London, adding that this had caused major uproar amongst the party’s members.162 According to some in the Foreign Office, seyada was ‘the usual Arabic translation for sovereignty and … it would have been unusual to use any other word’, meaning that ‘discussion having arisen about Egyptian sovereignty it was inevitable that this word should be used’.163 But the Sudan Government and the pro-independence party remained opposed to the new Protocol. The day after Sidky’s public statements, Attlee—Bevin being in New York—immediately affirmed in the House of Commons that nothing could impair ‘the right of the Sudanese people to ultimately decide their own future’.164 He had received a telegram from Huddleston, who found himself confronted back in the Sudan with demonstrations, boycotts and disgruntled members of the Sudan Political Service165 saying that Sidky’s statements had destroyed any chance of implementing the Protocol without serious violence. Huddleston presented the pro-independence movement—which his government had marketed not too long before as the ‘responsible’ opinion—as mostly composed of ‘virile and fanatical’ Mahdists under the influence of El Sayed Sir Abdel Rahman-el-Mahdi Pasha.166 However, while having supported Huddleston with the statement in the Commons, Attlee expressed frustration in his direct response to him (‘I am disappointed and disturbed by your admission of failure to persuade Sudanese leaders of the very real advantages of the Sudan Protocol’), and expressed the hope that Huddleston would be able to influence the leaders of both the Umma party and the Ashiqqa party, who had ‘been the recipients of much honour from His Majesty’s Government in the past’.167 In a note to the Egyptian negotiating delegation, Sidky explained his interpretation of the treaty;168 an interpretation that was consistent with what he had said during his discussions with Bevin. He emphasized that the Protocol was the first international act in which Britain expressly recognized Egypt’s sovereignty over the Sudan. This would end, he said, ‘the policy of Great Britain or her representatives in the Sudan of assuring themselves a part of the sovereignty over the Sudan by different and more or less indirect means by calling it in official documents “Anglo-Egyptian Condominium” which suggests a joint sovereignty’. He cited Fauchille’s Droit international public as an example of this policy having spread erroneous ideas even among jurists, given that Fauchille speaks of the ‘undivided sovereignty of Egypt and Great Britain’ over the Sudan.169 As to the rights of the Sudanese, Sidky emphasized that in international law, self-government is not equivalent to independence or sovereignty, providing article 76 of the UN Charter as an illustration.170 Thus, the Sudanese directing their own affairs would not be inconsistent with Egyptian sovereignty. As to the word ‘status’, this too had to be interpreted, per the Protocol, ‘within the framework of the unity of the Sudan and Egypt under a common crown, the crown of Egypt’. Thus, he argued, the Protocol did not grant the Sudanese a right to secession. The Protocol committed Britain, rather than Egypt, to change: ‘if the sovereignty of Egypt is permanent, the present administrative régime has, on the contrary, a temporary character since it must evolve towards self-government’.171 While Governor-General Huddleston went back to London personally to plead with the Prime Minister not to submit the Protocol for ratification, supported by a memorandum with the same plea from his three secretaries, Bevin and Attlee exchanged telegrams criticizing the Sudan Government for trying to run the Sudan ‘as if it existed in isolation from the rest of the world’,172 for exaggerating the consequences of the Protocol,173 and for complicating the sovereignty matter. Prime Minister Attlee wrote on this last point that the UK had ‘always understood that Egyptian Sovereignty over the Sudan existed though not explicitly stated’ and that ‘the fact was that the Sudanese ha[d] for the last twenty-two years shut their eyes to any Egyptian connexion and nothing was ever done to open them to the true state of affairs’.174 Huddleston commented on this part of the telegram: It is not the Sudanese who have shut their eyes to the Egyptian connexion during the past 22 years; they were deliberately shut for them with his (sic) Majesty’s Government’s cognizance. Their violent disillusionment now through Sidqi’s indiscretions without my having an opportunity to prepare them can only be regarded by them as a betrayal of the promise that there should be no change of status without consultation.175 But both Attlee and Bevin were determined to go forward with the Protocol.176 Huddleston came back in a more dramatic tone. In a note that he prepared for a meeting with Hector McNeil, Bevin’s Parliamentary Under-Secretary at the Foreign Office, he asked: ‘We have lived on bluff for the last twenty-four years and now our bluff has been called—why should the Sudanese be punished for believing that we were honest men and not bluffers?’ His note also stated that he reserved the ‘right to resign immediately’.177 McNeil thought that Huddleston was in a ‘Messianic’ frame of mind.178 The next day, Huddleston sent McNeil two further letters. Commenting on the Cabinet’s apparent belief that the Sudanese pro-independence group could be persuaded to accept the sovereignty clause, he wrote: This is wishful thinking on your part, and like all wishful thinking, at base dishonest. If you don’t believe me, produce only one other person with knowledge of the Sudan comparable to mine who disagrees with me; otherwise you MUST believe me. … It may be necessary for the Sudan to pay the price of the mistake of His Majesty’s Government in the past. That is honest and logical. … The situation is then clear and I can decide whether I can be their executioner or not.179 Huddleston’s plea notwithstanding, on 14 November the Cabinet decided not to push for changes in the Sudan Protocol.180 Huddleston now focused his efforts on obtaining some assurances that the British Government would stick to their interpretation of the Protocol as providing for the right of the Sudanese to secede from Egypt if they chose to do so. Whilst the British did not want to endorse the use of the word ‘secession’, as that had not been agreed between Sidky and Bevin and that word was not used in relation to the dominions of the Commonwealth in the Statute of Westminster,181 Attlee did try to reassure Huddleston when writing: His Majesty’s Government consider that, in the words used by the Egyptian Prime Minister to the British Foreign Secretary, nothing in the proposed treaty can prejudice the right of the Sudanese to achieve their independence nor bind a people in search of a liberty. The Egyptian minister pointed out to the British Foreign Secretary that this was a universal principle and therefore not a matter for incorporation in a treaty.182 However, while trying to reassure Huddleston, Attlee, having discovered in the minutes of the meetings between Bevin and Sidky that the latter had in fact never agreed to the option of secession, suggested to the Foreign Office that an exchange of letters of interpretation might be necessary.183 The ensuing British position that an exchange of letters of interpretation was necessary led the negotiations to a new dead end. Egyptian Prime Minister Sidky notified the British Government on 1 December that Egypt was prepared to ratify the Treaty and its protocols, but not exchange any letters of interpretation. It was precisely the British interpretation of the Sudan Protocol that had made it so difficult to persuade the Egyptian parliament.184 Bevin, however, informed Sidky that an exchange of letters of interpretation would be necessary. Otherwise, he said, he would make a statement to the House of Commons explaining that ‘at the back of the Sudan Protocol’ is the Sudanese ‘right, when ripe for self-government, to choose their future status which includes independence’. For ‘His Majesty’s Government could never in this age and with the spirit of the United Nations Charter guiding them in their foreign policy, accept the idea that the protocol had in some way imposed some check upon the Sudanese in the choice of their future status.’185 Meanwhile, Huddleston communicated Attlee’s guarantee of consultation to the Sudanese,186 with significant consequences in Egypt. The Egyptian press picked up Huddleston’s statement and, under increasing internal pressure from Egyptian nationalists who thought that the Protocol did not guarantee Egypt’s rights in the Sudan, Sidky resigned.187 He was succeeded by his predecessor, Nokrashy Pasha.188 The new prime minister adopted an even more uncompromising stance and outright rejected any right of the Sudanese to secede from Egypt.189 E. The Sudan Government’s success and its qualified commitment to self-determination With Bevin refusing to sign the Protocol without an exchange of letters of interpretation, Huddleston, his Secretaries, and his Political Service had managed to make Sudanese self-determination non-negotiable.190 The explanation for the Sudan Government’s success is multi-layered. Creeping de facto and de jure separation of the Sudan from Egypt had created a space for fostering the idea of the Sudan as a political unit distinct from Egypt. Banking on this, Huddleston and his team championed the idea of consultation of the Sudanese and created institutions that they thought could serve that purpose. In advocating for a procedural understanding of self-determination, they also sought to control the possible outcomes of that consultation. And, just by itself, the institutionalization of consultation based on the understanding of the Sudan as a separate entity cyclically reinforced the idea of the Sudanese as a distinct polity. This idea then lingered in the background of all subsequent British decision-making. Equally important was that the Sudan Government’s ideas and actions, although sometimes going against London’s immediate priorities in the negotiations, resonated in the Foreign Office. The Sudan Government’s position was consistent with a long-standing British antipathy towards, and distrust of, the Egyptians, as well as with feelings of inherent superiority. Thus, even when rational choice might have dictated compromise with the Egyptians—‘choose between receding on the Sudan issue or not having a Treaty of Alliance’, as Lord Stansgate put it—anti-Egyptian and colonial sentiment proved hard to shake off. Part of this mentality dictated that the UK should not give in too much to Egyptian demands.191 At a more symbolic level, the British predisposition may also have led to a sense of humiliation by the appearance of a triumphant Egyptian Prime Minister, seemingly having outmanoeuvred His Majesty’s Government. Illustrative is the view of a British negotiator that the Bevin-Sidky protocol would have succeeded had it not been for Sidky’s ‘indiscreet disclosures’ and ‘had [he] kept his mouth shut’.192 Thus, British officials made the most of the evolving political and legal toolkit of a seemingly new world order when they re-packaged and re-rationalized old anti-Egyptian prejudices with reference to the language of the Atlantic Charter, consultation, and the ‘wishes of the people’. A third explanatory factor was the determination of the officials of the Sudan Government, as evinced by their ceaseless diplomatic and public interventions, despite sometimes attracting the ire of both London and Cairo. When it appeared that the British Government was considering recognizing Egyptian sovereignty, key interventions of the Sudan Government, even if not on their face successful, ensured that consultation and self-determination remained the means by which the British measured success and progress in the Anglo-Egyptian negotiations. Moreover, its interventions constantly tested an already tense Anglo-Egyptian relationship, meaning that whatever space for compromise might have otherwise existed was greatly diminished. The confidence with which these interventions were carried out can in part be explained by the characters of the people that made them, a Huddleston or a Robertson, and in part by the institutions to which they belonged: the Sudan Government and the Political Service formed a closely knit community with shared values and prejudices. Generally left to their own devices, the British administrators in the Sudan had a great sense of independence. These elements combined meant that the Sudan Government gave its utmost not to see the Sudan being returned to Egypt. Quite paradoxically then, the unquestionably profound commitment—sometimes at a professional cost193—of the Sudan Government to Sudanese self-determination was in reality an upshot, rather than a rejection, of the paternalistic mentality that had characterized the civilizing mission. It was first and foremost the effort, in Huddleston’s words, not to ‘surrender a virile and friendly people to a corrupt and inefficient Government before they can stand upon their own feet’.194 Propagating the principle of self-determination externally to keep the Egyptians out, the Sudan Government internally told the Sudanese that they were not ready for it. Whilst Huddleston and his immediate subordinates had been the driving forces behind London and Cairo’s increasing commitment to self-determination, they had been lukewarm in promoting self-government at the internal level. Consistent with its self-understanding as benevolent rulers and father-like figures, the Sudan Government had resisted pressure from the Foreign Office and its Embassy in Egypt to speed up ‘Sudanisation’, the process of replacing Egyptian and primarily British officials in the Sudan Government with Sudanese.195 Moreover, whilst it insisted that the Sudanese had to be consulted, the Sudan Government’s own commitment to taking into account the wishes of the Sudanese was limited to taking into account the wishes of those who agreed with it on the future of the Sudan. Any other opinion was rejected as misguided, immature, or the product of Egyptian propaganda.196 The idea of self-determination that it promoted was one in which the ‘self’ largely had to conform to the ideas and prejudices of the British-staffed Sudan Government. IV. ‘Fighting for the Right of Self-Determination for the Sudan’: Legal Argument and British Policy on the Sudan Question before the United Nations Security Council and Beyond With Nokrashy as Prime Minister, Anglo-Egyptian treaty negotiations reached a new low, and Egypt decided to refer its grievances to the UN Security Council. Egypt argued that the 1936 Anglo-Egyptian Treaty had been superseded by the UN Charter, with its emphasis on sovereign equality, and that the UK’s continued presence in Egypt and the Sudan constituted a threat to peace and security. In response, the UK made an extensive legal argument, emphasizing that preserving the status quo by maintaining the Anglo-Egyptian Treaty was the only course of action that complied with the UN Charter. When it came to the future of the Sudan, it was the UK’s turn to invoke the supremacy of the UN Charter. It was at this moment that the UK invoked the right of the Sudanese to self-determination, which it had initially articulated only in its negotiations with Egypt, in formal, multilateral setting. The UK’s arguments carried the day in the Security Council and several other delegations spoke in favour of the Sudanese right of self-determination. After its lack of success at the Security Council, and after a domestic coup, Egypt eventually negotiated a new treaty with the UK over the Sudan, guaranteeing the latter’s right of self-determination and laying down the process according to which the Sudan would become an independent state. A. Imminent referral of Egyptian grievances to the United Nations makes Britain consider its legal position During the initial months following Sidky’s resignation, Bevin and Nokrashy tried to find a way in which the Sudan Protocol could still be ratified. While Nokrashy contemplated a Protocol of which there would be two interpretations, the British objected to an Egyptian interpretation that would not allow the Sudanese to choose independence.197 Yet championing a right of self-determination raised serious, if obvious, difficulties for Britain, still a prominent colonial power, especially at the level of legal argumentation. The first challenge was making Britain’s own promise of the right of the Sudanese to choose their own future opposable to the Egyptians. Bevin, as Foreign Secretary, did so by invoking the right of self-determination and the UN Charter at every turn of the negotiations.198 On 6 January, Bevin informed the Cabinet that he had ‘no alternative but to resist’ the Egyptian proposal ‘which would in effect deprive the Sudanese … of their right of self-determination’, ‘even though the result was a breakdown of the negotiations for the treaty’.199 On 9 January, a few days after he had updated the Cabinet on the government’s negotiation stance, Bevin proposed a new draft Sudan Protocol to the Egyptians that referred to the freedom of the Sudanese to exercise their choice over their future status ‘in accordance with the principles of the Charter of the United Nations concerning non-self-governing territories’.200 Updating the House of Commons on the treaty negotiations, he explained that he could not, after what had passed, recommend the Sudan Protocol to the Cabinet and to Parliament without securing an agreed interpretation of its terms, which would not run counter to what the people of this country regard as the natural order of things, viz., that peoples having achieved self-government shall have the ultimate right to self-determination, including a right to independence if they want it.201 A few days later, on 15 January, Bevin instructed Campbell to communicate to Nokrashy that the negotiations would fall apart if the right of the Sudanese eventually to decide whether they wished to be independent was taken away. This time he referred to this right without mentioning the UN Charter but as a ‘fundamental principle of human justice’.202 When Nokrashy rejected Bevin’s proposal and threatened that failure to reach an agreement would lead Egypt to refer the whole matter of the Anglo-Egyptian Treaty to the United Nations, Bevin remained adamant.203 He instructed Campbell: on one point you should disabuse Nokrashi’s mind at once, i.e. that we shall go to U.N.O. as friends if he decides to go there. This issue involves two parties entering into a treaty to deny a fundamental right of a third under the United Nations Charter; and this point is so vital that British opinion will compel its representatives to express themselves openly and forcefully.204 Bevin’s reliance on a right of self-determination enshrined in the Charter gave the British a potent answer to the Egyptians but created two issues: how to reconcile this position with Britain’s earlier stance on the meaning of self-determination in the UN Charter, and how to give effect to self-determination now that the UK had recognized Egyptian sovereignty in the Sudan? The first problem surfaced when the Egyptians pointed out to the British Ambassador in Cairo, Sir Ronald Campbell, that the Egyptian interpretation of the Protocol relied on the distinction between a right to self-government and a right to independence that the UK itself had insisted on in the UN Charter negotiations.205 Campbell advised Nokrashy that the British Foreign Minister ‘could not either on particular grounds connected with the Treaty nor on general grounds be put in a position of apparently endorsing a denial of the right of self-determination’ or ‘appear as going against all the principles of the United Nations Charter’.206 But internally, Campbell flagged that Egypt seemed to rely on the same distinction that the UK had made during the UN Charter negotiations, and asked the Foreign Office for ‘ammunition’. Campbell however anticipated that an answer would not be too difficult to come up with, given: [that] (a) there was now a new [British] Government and/or (b) that the British Government’s position was made clear by the statements some months ago that India, if she chose Dominion status, could, if she liked, secede from the Commonwealth and by Mr. Atlee’s very recent similar statement in the House of Commons about Burma.207 Preparing the ‘ammunition’ that Campbell had asked for, the Foreign Office consulted the Colonial Office—absent thus far from the deliberations, since the Sudan was not its responsibility.208 In its response to its Ambassador in Cairo, the Foreign Office dealt with the Egyptian argument regarding the UN Charter’s distinction between a right to self-government and a right to independence by distinguishing between three scenarios. The first scenario covered the case of a territory that particular circumstances excluded from becoming independent. The second scenario referred to a territory whose political aspirations turned to self-governance but not independence. According to the Foreign Office, the Sudan would fall within a third scenario, namely that of a territory that ‘might be self-governing and its political aspirations would turn towards independence’. The memo continued: ‘where this is so and where the other particular circumstances of the case do not exclude it, viz. very small size, etc, it seems to us that the real meaning of the Charter is that it should become independent’.209 This opinion by the Foreign Office is interesting because it interpreted the right to self-determination in the Charter to entitle a self-governing people to a right to independence except in ‘particular circumstances’, of which it mentioned only one example, namely a territory of a very small size, like St Helena. In this context, it made sense for the British to adopt a narrow interpretation of exceptions to right-to-independence circumstances: anything less stringent would have allowed Egypt to argue that self-determination did not necessarily mean a choice for independence in the case of the Sudan. However, even if self-determination was recognized as a right that ought to be respected, it was unclear how that could be reconciled with Bevin’s public admission of Egyptian sovereignty. What right to independence could there be if Egypt was sovereign in the Sudan? This question received much attention at the Foreign Office, especially after Nokrashy announced on 3 March 1947 the breakdown of negotiations and the referral of both the issue of the evacuation of British troops and the question of the Sudan to the UN Security Council.210 Two options were discussed: either try to re-open the question of Egyptian sovereignty, or ignore the problem of sovereignty and insist on the right of self-determination. After much deliberation, including considering legal opinions that would have Britain contest Egyptian sovereignty by either claiming that Britain was in fact sovereign in the Sudan,211 or characterize the latter as res nullius,212 the Foreign Office’s chief legal adviser, Eric Beckett, suggested (and Daniel Lascelles, head of the Egyptian Department, agreed) that it would be politically inopportune to contest Egyptian sovereignty over the Sudan after Bevin’s public recognition of it.213 Two legal opinions bolstered the preference for not reopening the question of Egyptian sovereignty, as they argued that Egyptian sovereignty did not affect the Sudanese right of self-determination. Alexander McDougal, Legal Counsellor at the Cairo Embassy, advised that whoever was sovereign in the Sudan, their sovereignty ‘was subject to the right of self-determination of the Sudanese’.214 Foreign Office Legal Adviser Beckett advised the UK’s representative at the UN, Sir Alexander Cadogan, in view of the upcoming Security Council meeting and with the authorisation of the Permanent Under-Secretary of State, that if the Egyptians insisted on sovereignty, Cadogan should respond that ‘we [ie Britain] shall not relinquish our administrative responsibility until the right of the Sudanese to self-determination is ensured’.215 The British seemingly took a pragmatic approach to the challenges they faced, and did not appear to reflect at great length on how reconfiguring the position on self-determination that they had advocated at the San Francisco conference could harm their interests in the future. However, it bears remembering that British officials were not arguing that the right of self-determination was to be exercised without further mediation. Instead, their position was that the right to self-determination entailed a duty not to take away the prospect of independence. The British articulated that duty in the broadest possible manner. Britain’s case rested on the right of self-determination being applicable independently of particular circumstances, precisely because otherwise Egypt could have countered that those circumstances were not present in the case of the Sudan. Legal opinions notwithstanding, the head of the Egyptian Department, Lascelles, posed himself the question, just one day before Egypt would refer its case to the Security Council, whether Britain could be thought of as sincere in its invocation of self-determination, given the country’s colonial past. He answered to himself: The official answer is, I suppose, that our immediate strategic interests in India did not prevent us from giving the Indians a free choice as soon as we judged them ready for it—in other words that our strategic interests in the Sudan, though real and avowed, are subordinate in our minds to the overriding Sudanese right to self-determination.216 B. Refuting Egyptian claims at the Security Council In a letter dated 8 July 1947, Egypt submitted its case to the UN Security Council, opening with its principal issue: ‘British troops are maintained in Egyptian territories against the unanimous will of the People’. Such a presence, it argued, was amongst other things an infringement of the ‘fundamental principle of sovereign equality’ and ‘therefore contrary to the letter and spirit of the United Nations Charter’. According to the letter, Egypt had tried to address the matter peacefully, through negotiations, but these had failed, whilst the UK had continued to rely on the Anglo-Egyptian Treaty of 1936 which, in Egypt’s argument, could not ‘bind Egypt any longer, having outlived its purposes, besides being inconsistent with the Charter’. Egypt asked the Security Council to order ‘the total and immediate evacuation of British troops from Egypt including the Sudan’ and ‘the termination of the present administrative regime in the Sudan’.217 Egypt’s letter triggered a substantial debate, taking up several meetings in the Security Council’s second year of existence. The meetings included lengthy exposés from both the Egyptian representative, Prime Minister and Foreign Minister Nokrashy Pasha, and the British representative, Sir Alexander Cadogan, covering amongst other things the history of Britain in Egypt and the Sudan from the early nineteenth century.218 But their interventions, and those of members of the Security Council, also touched upon fundamental contemporary issues such as the role of international law in the new world order, and the mandate of the Security Council and its role in ‘internal’ or ‘legal’ questions. Nokrashy argued that this was a matter for the Security Council, because the UK’s occupation of Egypt was a menace to peace. In the Egyptian Prime Minister’s account, Egypt did not go to the Security Council to ‘argue the juridical position of the 1936 Treaty’, but to ‘plac[e] its reliance on the Charter’: ‘Whatever may have been the purport of international law in the past, we now have the Charter as a solid basis for dealing with a dispute between two Members of the United Nations.’219 In Egypt’s argumentation, the Charter and its emphasis on sovereign equality provided a new beginning, displacing bilateral treaties concluded under circumstances incompatible with the Charter,220 such as imperialism.221 Britain, however, insisted that this was a purely legal question, rather than a threat to international peace and security, and was therefore outside the competence of the Security Council. Invoking pacta sunt servanda as ‘perhaps the most fundamental principle of international law’, Cadogan argued that the matter before it was about the legal validity of the 1936 Anglo-Egyptian Treaty and that, if that treaty was valid, the Council could not, ‘consistently with the purposes of the United Nations, take any other course than that of recognizing this fact and removing the matter from the agenda’.222 Cadogan then continued interpreting Egypt’s arguments in the framework, and language, of international law, rather than peace and security, categorizing Egypt’s arguments as an invocation of the rebus sic stantibus doctrine and of the incompatibility of treaties, both of which he then dismissed.223 Accepting Nokrashy’s arguments, Cadogan asserted, would allow ‘any State to get rid of its treaty obligations on the ground that it dislikes them sufficiently to be prepared to endanger peace’, which ‘would not be a practice which would conduce to peace and security’.224 Nokrashy Pasha retorted that the threat was ‘due to the British themselves’, given the resentment against their presence,225 and concluded his statement: I shall once more remind the Security Council that we live today, not in 1882, not in 1899, not in 1914, not in 1922, not in 1936—we live in the year 1947. We ask the Council to take account of the political situation now existing. No obsolete treaty can obstruct the Council’s fulfilment of its high mission under the Charter. No legalistic consideration can forestall its effort to bolster peace and security. Egypt wants to live its own life free from the iron hand of a powerful invader. As a sovereign equal State, Egypt wants to enjoy its rightful place in the family of the United Nations. Between the 1936 Treaty and the Charter, we have chosen the Charter.226 However, on the issue of the Sudan, it was Britain, rather than Egypt, that invoked the UN Charter. Arguing that the negotiations over the revision of the 1936 Treaty had broken down only because of the Sudan issue, Cadogan asserted that ‘Egypt was not prepared to accord to the Sudan the freedom to choose complete independence which Egypt so ardently claims to be the right of other territories and which it had itself received from the United Kingdom.’227 But he went further than pointing to the inherent contradictions in the Egyptian position: he argued that the UK would maintain its policy to insist on ‘the ultimate freedom of choice of the Sudanese people’, because it considered it to be: the only policy consistent with the record of its own country, which has voluntarily and freely agreed to the creation from its own territories of more sovereign independent countries than any other nation in the world; the only policy consistent with justice to the Sudanese people, who, under the present administrative regime, have achieved a remarkable development; and the only policy consistent with the spirit of the United Nations Charter itself, which, in Article 1, paragraph 2, refers to the self-determination of peoples.228 He went on to argue that this was a policy inspired by obligation: ‘His Majesty’s Government feels obliged to maintain its policy, which is the only one which it conceives to be consistent with its own national record, with the principles of the Charter and with the interests of the Sudanese.’229 A few sessions later, responding to interventions made by Security Council members, Cadogan stated: ‘I had hoped that most of the members of this Council would have understood that we were fighting for the Sudan’s full right of self-determination, a right which is not, apparently, admitted by the Egyptian Government.’230 Egypt failed to persuade sufficient delegations in the Security Council of its vision of the role of the Council and its understanding of a threat to peace and security.231 On the Sudan issue specifically, both proponents and opponents of a role for the Security Council in this dispute were cautious, but the right to self-determination as such did find broad support. Cadogan’s arguments struck a chord even with delegations that were usually not on the UK’s side, such as the USSR and Poland.232 The statements of some other delegates mirrored closely the UK’s basic line of argument about self-determination.233 Ultimately, in spite of Nokrashy’s passionate plea for a more activist Security Council234 and his warning, referring to the British policy of separate administration for Southern Sudan, that ‘[a]n ominous threat exists to the territorial integrity of the Sudan itself’235—a statement that suggests a conception of non-self-governing territories as having a right to territorial integrity—Egypt did not get any resolution on the matter that it had put before the Council, as the members failed to agree on wording.236 Cadogan’s statements in the Security Council were the culmination of Britain’s stance on the future of the Sudan, and followed legal advice to refer explicitly to ‘the right of self-determination’.237 Cadogan spoke of a ‘right’ of self-determination, sometimes in connection with the UN Charter, mentioning ‘Article 1, paragraph 2’, ‘the principles of the Charter’ and ‘the spirit of the Charter’, and sometimes without reference to the Charter, instead speaking of, for example, ‘the only policy consistent with justice to the Sudanese people’ that the UK ‘feels obliged to maintain’, evoking a sense of legal obligation beyond the UN Charter. These statements not only followed the legal advice of the Foreign Office, but echoed closely the Foreign Secretary’s earlier instructions for a reply to the Egyptians, citing self-determination as a ‘fundamental right under the United Nations Charter’,238 as well as a ‘fundamental principle of human justice’, not to be bartered away in bilateral negotiations.239 Thus, Cadogan’s speech, when viewed in the context of the legal advice received from the Foreign Office, as well as Bevin’s earlier statements, supports the argument that Britain was advancing self-determination both as a right under the UN Charter, as well as a right sourced outside the confines of treaty law. International legal scholars have suggested, with respect to the anti-colonial self-determination resolutions, that these two tracks for the establishment of self-determination as a right—that is subsequent practice informing the meaning of the Charter and state practice leading to the formation of a new rule of customary international law—may indeed largely overlap, making it hard neatly to distinguish the two.240 The UK’s practice in this instance provides sufficient material to suggest a contribution along both paths. With arguments referring to the right of self-determination as a fundamental right under the UN Charter, the UK was registering its interpretation of a treaty, whereas by citing a ‘policy inspired by obligation’ as well as ‘the only policy consistent with justice’ without an explicit connection to the UN Charter, it was contributing to a nascent rule of customary international law. C. The rest is history: Britain has second thoughts on the ‘right’ of self-determination but the Sudan plunges into independence Throughout the following years, the issue of the Sudan would remain a thorn in Anglo-Egyptian relations. The two states would reach a compromise only after the Egyptian Revolution of 1952 had overthrown King Faruq and the new Egyptian Government, anxious to have British troops finally removed from Egypt, exhibited a more compromising stance on the Sudan issue. Britain never retreated from its position regarding the right of the Sudanese to self-determination. However, during the renewed negotiations, some officials in the Foreign Office expressed second thoughts about references to a ‘right’ of self-determination. As Egypt formulated its new negotiating position after the Security Council debacle, it presented the British Government with a note stating: ‘The Egyptian Government firmly believes in the right of the Sudanese to self-determination and the effective exercise thereof in the proper time and with the necessary safeguards’.241 Overall, the Egyptian note received a positive reaction by the British. Yet this time around, the reference to a ‘right’ to self-determination appeared to raise some eyebrows in the Foreign Office. As one British diplomat remarked in relation to the Egyptian statement: ‘In deference to the Colonial Office we have tried to avoid using the phrase “right to self-determination”. Otherwise this is an entirely satisfactory commitment by the Egyptian Government to the principle of self-determination for the Sudanese.’242 If backtracking on using the term ‘right’ represented a new policy of the Foreign Office, it did not take hold in the Sudan case. Indeed, when in 1953 Egypt and Britain signed an agreement on ‘Sudanese Self-Government and Self-Determination’ they did so, according to the preamble, ‘firmly believing in the right of the Sudanese to self-determination’.243 That right led to Sudanese independence sooner than either the British or the Egyptians had expected. The elections for a Constituent Assembly that were held shortly after the conclusion of the 1953 Agreement resulted in the pro-union coalition gaining more than double the seats of the pro-independence Umma party. But by 1953, a pro-union vote was not necessarily a vote for unification with Egypt; it could also express support for independence via a different avenue than the one controlled by the British and Mahdists.244 The pro-union faction was still fragmented over what union with Egypt meant, and its leader, al-Azhari, gradually moved away from his previous pro-Egyptian stance, instead pressing for Sudanese independence.245 Confronted with a mutiny in the South that had been inspired by fears of domination and colonization by Northern Sudanese, the British accelerated Sudanese independence, abandoning the process laid down in the 1953 Agreement.246 On 1 January 1956, the Sudan, including Southern Sudan, became independent. As for the UK and self-determination in the post-Charter era, it seems that the UK became more cautious about the concept when it began to be invoked against it, as it was with increasing frequency from the 1950s.247 In the late 1940s the Sudan case still influenced some British policy-making elsewhere, most notably on the question of the future of Italian colonies after the war.248 However, in the following years, the Colonial Office, which had hardly been involved in the Sudan question, tried to steer the UK’s legal position on self-determination in a different direction. Resisting inclusion of a right of self-determination in the two international human rights covenants, the UK began to argue that self-determination was a political rather than a legal principle, could be abused as an excuse for intervention in the domestic affairs of other states, and could pose a threat to international peace and security.249 In internal correspondence, the British cautioned against recognizing a right of the United Nations to interfere in the UK’s relations with its own colonies.250 Especially in relation to some areas of great strategic interest, such as Cyprus, the Colonial Office argued that self-determination had never been ‘an absolute criterion of their future’, contrary to what Britain had been advocating regarding the Sudan.251 Even recently, Britain withheld its early record on self-determination, namely its advocacy for the concept in the Sudan in the late 1940s, when it claimed in proceedings before international arbitrators and the International Court of Justice that it had consistently objected to any reference to a ‘right’ of self-determination and that it had not ascribed any legal significance to self-determination until the 1970s.252 V. Conclusion ‘It would be interesting to know’, Lord Stansgate wrote to his colleagues in the Foreign Office and the British Embassy in Cairo in December 1946, ‘when the British Government took a decision that the Sudan should have the choice of independence. It certainly was never foreshadowed in the Agreements of 1899.’253 Lord Stansgate may be excused for having been puzzled over what had transpired between 1899 and 1946 that would have changed British views. In a sense, much had happened: two World Wars, the Atlantic Charter, the decline of British imperial power, and the articulation of a new world order based on the UN Charter. At the same time, there were latent continuities: paternalistic instincts and imperial mentality still carried the day, even if packaged in the latest concepts of international law. In this context, the Sudan Government exerted considerable influence on official negotiations and argumentation. This influence was so incremental that it would be difficult indeed to answer Lord Stansgate’s question precisely, and anchor a change in policy at a specific point in time. However, the periodization advanced in this article does suggest that there was a short window immediately after the adoption of the UN Charter in which a prominent colonial power invoked self-determination as a legal right. The right was discussed in the Security Council outside the more polemic context of decolonization that would characterize subsequent discussions. In order to explain how it happened that in this short period the UK pushed the argument of the right to self-determination, at times even against its strategic and colonial interests, it is essential to look beyond these Security Council debates. This reveals how the men of the Sudan Government, operating at the margins of British imperial policy under only loose supervision, steadily developed a strong self-justificatory narrative according to which they owed the Sudanese a responsibility of care and protection, even when this responsibility went against that people’s wishes. Their imperial and paternalistic ethos made them inherently suspicious of the Egyptians and those Sudanese educated classes that sought union with Egypt at the expense of British influence. Self-determination gave them an increasingly strong argument to keep Egypt out of the Sudan. The Sudan Government’s biggest achievement was perhaps that the Foreign Office began to analyse and understand the question of the Sudan in the language and framework of self-determination. It meant that whatever the actual decision makers were discussing, they were doing so with a more or less set vocabulary. This vocabulary meant that some negotiating outcomes were no longer acceptable, even where this threatened the UK’s strategic interests. The most conspicuous example was the situation that puzzled Stansgate: the UK’s out-of-the-gate rejection of any unconditional recognition of Egyptian sovereignty (even though the restoration of that sovereignty had served as an excuse for intervening in the Sudan in the first place, and had never been openly disputed).254 When London transgressed those boundaries and extended some recognition of Egyptian sovereignty in the Bevin-Sidky protocol, this was quickly rescinded after Sidky publicly claimed that he had brought the Sudan back to Egypt. The adoption of the self-determination framework also meant that when the British Government went on to articulate its negotiating position in positive terms, it largely operated with an almost defined set of options. An illustration is Bevin’s pledge to consult ‘constitutional channels’, meaning the Sudan Government’s Advisory Council, in case of any alteration of the status of the Sudan.255 Overall, even to the detriment of its negotiating position on key issues on the (geo-) political agenda, Britain pressed the legal claim of a right of the Sudanese to self-determination in its bilateral negotiations with Egypt, as well as, subsequently, in the Security Council. The historical record thus shows that Britain imbued self-determination with legal meaning before the 1960s. Self-determination performed functions characteristic of a legal concept, including some of those that the law attaches to self-determination today, for instance a prohibition on signing a treaty that would deny the right to self-determination of a third party. Moreover, they did so without making distinctions that subsequent doctrine considered relevant; the officials who invoked self-determination did not differentiate self-determination as a principle from self-determination as a right, using the two terms indiscriminately and, in any event, mostly referring to self-determination as a right.256 Similarly, the distinction between legal and political right is also difficult to trace in the historical records. Rather, the debate about self-determination’s legal status seems to have surfaced when the full subversive potential of the concept became more apparent.257 In conclusion, while the Sudan case did not resolve, or preempt, all differences relating to the interpretation and application of the right of self-determination, it does constitute one of the first chapters in the postwar legal history of the right. Acknowledgement Orfeas’s work on this article was carried out as research assistant on Nouwen’s grant from the Economic and Social Research Council (ES/L010976/1). Sarah’s work is supported by the Economic and Social Research Council (ES/L010976/1), the Leverhulme Trust (PLP-2014-067), and the Isaac Newton Trust (RG79578). The authors thank Francis Gotto and Stacey Seddon at the Sudan Archives in Durham as well as the staff at The National Archives in London for their most helpful assistance. They are also tremendously grateful to Megan Donaldson, Afroditi Giovanopoulou, Michelle Burgis-Kasthala, Eddie Thomas, and three anonymous reviewers for their generous comments on previous versions of this piece and to Tim Clark for his copy-editing. All errors remain our own. Footnotes 1 JSR Duncan cited this poem in his personal correspondence with GD Lampen, Sudan Archive at Durham (SAD), file of W Luce (829/5/3). The text is an extract from a longer poem that Lord Cromer wrote in 1882, cited in LJ Zetland, Lord Cromer: Being the Authorized Life of Evelyn Baring, First Earl of Cromer (Hodder and Stoughton 1932) 87. Lord Cromer served as Controller-General in Egypt (1879) and later Consul-General for the British Empire in Egypt (1883–1907). 2 This article refers to Sudan with the definite article ‘the’, as this was how it was commonly referred to by the British, the Egyptians, and the Sudanese at the time under consideration. Moreover, Sudan’s 2005 Interim National Constitution, as well as its 1998 Constitution, refer throughout to ‘the’ Sudan and the people of ‘the’ Sudan. 3 SAD 829/5/3, letter by JSR Duncan to GD Lampen (2 October 1955). 4 Ibid. 5 Ibid. 6 See, eg, Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960); Principles which should guide members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter, UNGA Res 1541 (1541) (15 December 1960); Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970). See also articles 1 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 and the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. 7 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 3; Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. See also East Timor Case (Portugal v Australia) [1995] ICJ Rep 90; Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 136; Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 8 For the dominant narrative, see, eg, J Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 141; MN Shaw, International Law (8th edn, CUP 2018) 199; A Cassese, Self-Determination of Peoples: A Legal Appraisal (CUP 1992) 37–69; D Thürer and T Burri, ‘Self-determination’ in R Wolfrum (ed), Max Planck Encyclopedia of International Law (OUP 2008– , online edition [www.mpepil.com]); R Higgins, Problems and Process: International Law and How we Use it (OUP 1994) 111–21. See also H Quane, ‘The United Nations and the Evolving Right to Self-determination’ (1998) 47 ICLQ 537. For a detailed account of the history of self-determination from the perspective of international legal doctrine, see J Crawford, ‘The Right to Self-Determination in International Law: Its Development and Future’ in P Alston (ed), Peoples' Rights (OUP 2001) 19. For a discussion of decolonization practice that ventures earlier than the 1960s see J Trinidad, Self-determination in Disputed Colonial Territories (CUP 2018). 9 See R Burke, Decolonization and the Evolution of International Human Rights (UPP 2010) 29–44; J Fisch, A Mage (transl), The Right of Self-Determination of Peoples: Domestication of an Illusion? (CUP 2015) 191–97. See also S Moyn, The Last Utopia: Human Rights in History (HUP 2010) 70–71. For a review of recent literature, see J Eckel, ‘Human Rights and Decolonization: New Perspectives and Open Questions’ (2010) 1(1) Humanity 124. 10 For the rescinded promise of the Atlantic Charter and the ‘consolation prize’ of human rights in its stead, see S Moyn, Not Enough: Human Rights in an Unequal World (HUP 2018) 68–69; J Fisch, A Mage (transl), The Right of Self-Determination of Peoples, 175–89, calling this ‘the perversion of the great promise’. For an overview of how international lawyers later interpreted the Atlantic Charter as the intellectual prelude to self-determination and how they understood its juridical status, see EA Laing, ‘The Norm of Self-Determination: 1941–1991’ (1991–1992) 22 CalJIL 209. 11 This article draws on primary materials included in DH Johnson (ed), Sudan: British Documents on the End of Empire Project (hereafter BDEEP), Series B, Volume 5, as well as supplementary archival research carried out at The National Archives of the UK (TNA) and the Sudan Archives in Durham (SAD), and reports of Security Council meetings in 1947 that are available online. Wherever the archival material referred to matches that included in the BDEEP, the reference is to the BDEEP, for the reader’s ease of reference and to give due credit to BDEEP editor Johnson for collecting, transcribing, and annotating the relevant materials. 12 In this article, the Sudan Government refers to the body consisting of the Governor-General, as well as his three Secretaries. 13 J Crawford, ‘The Right to Self-Determination in International Law’, 7, 10. 14 J Crawford and T Viles, ‘International Law on a Given Day’ in J Crawford (ed), International Law as an Open System (Cameron May 2002) 69, 91. 15 Written Statement of the United Kingdom in the Advisory Proceedings before the International Court of Justice regarding the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (27 February 2018) 141 (§§8.66; 8.71). See also Counter-Memorial by the United Kingdom, Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (15 July 2013), §7.17; Mauritius v United Kingdom, Hearing on Jurisdiction and Merits in the Chagos Marine Protected Area Arbitration, vol 6 (1 May 2014) 706–708. 16 See, eg, Johnson, BDEEP; PM Holt and MW Daly, A History of the Sudan (6th edn, Pearson 2011) 110; RO Collins, A History of the Modern Sudan (CUP 2008); MO Beshir, Revolution and Nationalism in the Sudan (Rex Collings 1974) and FAA Taha, ‘The Sudanese Factor in the 1952–1953 Negotiations’ (2008) 44(2) Middle Eastern Studies 603. For Sudanese legal argumentation as to their right to self-determination in the period considered in this article, see, eg, BDEEP Ser B Vol 5, 71, FO 371/53254/3525, Despatch no 927 from Sir R Campbell to Mr Bevin, annex: letter from Abdallah Bey Khalil (Secretary-General of the Umma party) to Mr Attlee and Sidqi Pasha (19 July 1946) (‘The Umma Party, fully alive of your sincerity to discharge loyally those obligations to which your Government have committed themselves by International Agreements, claim an unrefutable right trusting that you will realise the people’s aspirations without their having to resort to the United Nations Organisations or to any other means.’). 17 See ØH Rolandsen & MW Daly, A History of South Sudan: from Slavery to Independence (CUP 2016) and E Thomas, South Sudan: A Slow Liberation (Zed Books 2015). On Britain’s ‘Southern Policy’, see A Idris, Conflict and Politics of Identity in Sudan (Springer 2005) and MA Rahim,‘The Development of British Policy in the Southern Sudan 1899–1946’ (1966) 2 Middle Eastern Studies 227. 18 On the reception of President Wilson’s promises regarding self-determination in Egypt, see E Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (OUP 2009) 63–75. 19 For how the British came to occupy Egypt, see D Malcom Reid, ‘The `Urabi revolution and the British conquest, 1879–1882’ in MW Daly (ed), The Cambridge History of Egypt. Vol. 2: Modern Egypt from 1517 to the End of the Twentieth Century (CUP 1998). 20 PM Holt, A Modern History of the Sudan (Weidenfeld 1965) 112. See also BDEEP Ser B Vol 5, 86, FO 371/53257/4373, Letter from Sir R Wingate (Governor-General of the Sudan 1899–1916) to Mr Bevin (Secretary of State for Foreign Affairs) (11 October 1946): ‘I myself always regarded the sovereignty of Egypt over the Sudan, as modified by the Condominium of 1899, as undoubted. In fact it was I who, during the Fashoda incident when Kitchener and myself met Marchand, persuaded Kitchener to fly only the Turkish (Egyptian) flag and to use the argument that we had reconquered the Sudan on behalf of the Khedive and not of the British Government.’ See also BDEEP Ser B Vol 5, 116, FO 371/53262/5155, Record by Lord Stansgate of a meeting with SAR and advisers (2 December 1946). 21 Holt, A Modern History of the Sudan, 111; MO Beshir, Revolution and Nationalism, 20–21. For British strategic interests in the region at the time, see T Tvedt, The River Nile in the Age of the British: Political Ecology and the Quest for Economic Power (Tauris 2004); JA Hail, Britain’s Foreign Policy in Egypt and Sudan 1947–1956 (Ithaca Press 1996) 3. 22 TNA FO 93/32/27, Agreement between her Britannic Majesty’s Government and the Government of his Highness the Khedive of Egypt, Relative to the Future Administration of the Sudan, Cairo (19 January 1899) (see also XXI Hertslet’s Commercial Treaties 356). The January agreement was followed by the 10 July 1899 Supplemental Agreement, which included the port city of Suakin in the arrangements of the previous treaty. See TNA FO 93/32/28, Agreement between Her Britannic Majesty’s Government and the Government of the Khedive of Egypt, relative to the Inclusion of Suakin in the Agreement of January 19, 1899 (10 July 1899) (see also XXI Hertslet’s Commercial Treaties 358). 23 The grandfather of future UN Secretary-General Boutros Boutros-Ghali. 24 Anglo-Egyptian Agreement of 1899, title (emphasis added). 25 As far as the British position was concerned, a preambular recital expressed the desire ‘to give effect to the claims which have accrued to Her Britannic Majesty’s Government, by right of conquest, to share in the present settlement and future working and development of the … system of administration and legislation’. See Anglo-Egyptian Agreement of 1899, third preambular recital. 26 For a full review of the legal as well as historical, cultural and geographical grounds on which Egyptian scholars based Egyptian sovereignty in the Sudan, see R Ginat, Egypt and the Struggle for Power in Sudan: from World War II to Nasserism (CUP 2017) 22–36. On the complex relationship between Egypt and the Sudan and Egyptian ideas of a civilizing mission of their own in the Sudan, see also Troutt Powell, A Different Shade of Colonialism, 167. 27 According to historian William Travis Hanes III, ‘British statesmen insisted on describing the government as a “condominium” between two supposedly equal powers, primarily as a means of “obfuscating,” as Lord Salisbury once put it, the international status of the territory, in an effort to defuse both European and Egyptian criticism of British “expansionism”.’ See WT Hanes III, Imperial Diplomacy in the Era of Decolonization: The Sudan and Anglo-Egyptian Relations 1945–1956 (Greenwood Press 1995) 4. See also Sir M Lampson’s advice to the Sudan’s Governor-General in 1945 that Britain ‘should maintain the condominium facade’ by consulting the Egyptians in formal matters: BDEEP Ser B Vol 5, 25, FO 141/1013/22, Despatch no 44 from Lord Killearn to Sir H Huddleston on British interests in the Sudan and the possibility of using the Nile Waters as a means of resisting Egyptian pressure (7 February 1945). 28 Anglo-Egyptian Agreement of 1899, art III. 29 Collins, ‘The Sudan Political Service: A Portrait of the “Imperialists”’ (1972) 71 African Affairs 293, 300–303. 30 Ibid. See also Anthony Kirk-Greene, Britain’s Imperial Administrators, 174. 31 Hanes III, The Sudan and Anglo-Egyptian Relations, 5–6, footnote 6. 32 See Hanes III, The Sudan and Anglo-Egyptian Relations, 172. 33 Ibid. See also Kirk-Greene, Britain’s Imperial Administrators, 165. The Governor-General had ‘the supreme military and civil command of the Sudan’, including the power to make laws by proclamation that only had to be notified to the Egyptian Government and the British Government, via the British Consul-General in Cairo. See Anglo-Egyptian Agreement of 1899, art IV. The Sudan Government’s substantial autonomy was even more entrenched in the South, for which the British developed special administrative arrangements, separating communities of the North from those in the South: EM Troutt Powell, A Different Shade of Colonialism: Egypt, Great Britain, and the Mastery of the Sudan (UCP 2005) 168. Ruling the South was a small class of British officials mostly of a military background—nicknamed the Bog Barons—who were thought tough enough to withstand the region’s climate, disease, and lack of amenities, as well as handle a supposedly untamed populace of a vast and remote region. These were even more paternalistic and autonomous than their colleagues in Khartoum. See Rolandsen & Daly, History of South Sudan, 34–51. See also F Deng and MW Daly, Bonds of Silk: The Human Factor in the British Administration of the Sudan (MSUP 1989). 34 See, eg, SAD 170/3/67–181, 98, 100, ‘Account of the interview which took place between Saad Zaghlul Pasha [President of the Egyptian Legislative Assembly] and his friends with H.E. Sir Reginald Wingate [British High Commissioner in Egypt between 1917 and 1919] on the 13th November 1918’: Ali Sharaawi Pasha answered [Wingate’s question about the wishes of the Egyptians] by saying the Egyptians wish to be friends to the English, but they want such a friendship as that of a free man not that of the slave to his master. H.E. the High Commissioner said, ‘Then you require independence,’ and Sa’ad Pasha remarked that the Egyptians were entitled and quite worthy to have it, and inquired whether they lacked anything of what entitles them to share what other independent nations enjoy. The High Commissioner said that a stomach if given more food than it can possibly digest is sure to suffer. To which the Pasha responded, inter alia: The truth is that we resemble a sick man who is the only person who knows what ails him and feels the pain. The Egyptian alone feels what he lacks in knowledge and what he requires of Education. See also SAD 170/3/107–119, Letter from Wingate to Lord Hardinge (14 November 1918) 114: ‘The theories enunciated by President Wilson, and so largely subscribed to by the Allied Powers are bound to have a repercussive effect in a country constituted as this is and amongst Egyptians who, like the Athenians, “spend their time in nothing else, but either to tell, or to hear some new thing”.’ 35 See JA Hail, Britain’s Foreign Policy in Egypt and Sudan, 7. 36 Hanes III, The Sudan and Anglo-Egyptian Relations, 7. 37 For the full text of the 22 February 1922 Declaration, see AP Blaustein, JA Sigler, BR Beede, Benjamin (eds), Independence Documents of the World (Vol 1, Dobbs Ferry 1977) 204–205. 38 The White Flag League, an organized nationalist movement of Sudanese military officers, became the most vocal organization against the British. See G Musso, ‘The Making of a Fragmented Nation: sufi ṭuruq and Sudan’s Decolonization’ (2017) 97 Oriente Moderno 133–53. On identity in the Sudan in the relevant period, see E Vezzadini, Lost Nationalism: Revolution, Memory & Anti-Colonial Resistance in Sudan (James Currey 2015) 33–37. Following Vezzadini’s work, the present article uses labels such as ‘Arab’, ‘Sudanese’ and ‘Egyptians’ while recognizing that the lines between these different identities are blurred. 39 For an overview, see MO Beshir, Revolution and Nationalism, 92 et seq. 40 In later years these two different slogans would be associated with opposing views regarding the country’s status as the British left, one denoting some form of unity with Egypt and the other complete independence. On early notions of Sudanese nationalism and the 1924 revolution, see Y Kurita, ‘The Role of “Negroid but Detribalized” People in Modern Sudanese History’ (2003) 8–9 Nilo-Ethiopian Studies 5–7. 41 Hanes III, The Sudan and Anglo-Egyptian Relations, 7. 42 Daly, Empire on the Nile, 308. 43 On the events of 1924 and how they were documented by the British, see Vezzadini, Lost Nationalism. 44 Daly, Empire on the Nile, 327. 45 Ibid, 313–15. 46 Musso, ‘The Making of a Fragmented Nation’, 140. 47 Ibid. For earlier efforts of the British to co-operate with the Mahdists and capitalize on their anti-Turkish predisposition during World War I, see A al-Sid al-Karsani, ‘Establishment of neo-Mahdism in the Western Sudan’ (1987) 86 African Affairs 385. 48 Holt and Daly, A History of the Sudan, 95–96; Holt, A Modern History of the Sudan, 133–36. 49 Treaty of Alliance between His Majesty, in respect of the United Kingdom, and His Majesty the King of Egypt, London, 26 August 1936, Treaty Series No 6 (1937) Cmd 5360. 50 BDEEP Ser B Vol 5, 10, FO/371/31587/4388, Letter from Sir M Lampson to Sir A Cadogan (11 October 1942). 51 HA Ibrahim, ‘The Sudan in the 1936 Anglo-Egyptian Treaty’ (1973) 54 Sudan Notes and Records, 1, 13–14. 52 Many of them were graduates of Gordon Memorial College in Khartoum, which had been created in 1902 in memory of General Charles George Gordon who had led the campaign against the Mahdi uprising in 1885 at the cost of his head. The College was funded by a British foundation: A Jackson, Buildings of Empire (OUP 2013) 199. 53 Holt, A Modern History of the Sudan, 142. 54 MO Beshir, Revolution and Nationalism, 133, citing newspaper Al Fagr, Vol. III, 161–63. 55 MW Daly, Imperial Sudan: the Anglo Egyptian Condominium 1934–1956 (CUP 1991) 82. 56 Holt and Daly, A History of the Sudan, 100. 57 MO Beshir, Revolution and Nationalism, 137–38, citing Civil Secretary to Governors and Heads of Departments, 28 March 1938, SGA/CS/SCR/1/B2 [Sudan Government Archive] quoted by GMA Bakheit’s ‘British Administration and Sudanese Nationalism’ (PhD thesis, University of Cambridge 1965). 58 The Atlantic Charter was a joint declaration by US President Franklin D Roosevelt and British Prime Minister Winston Churchill, issued on 14 August 1941, that defined the Allied war aims for the post-war world. It provided in principle 3 that ‘all people shall have the right of self-determination’. On 1 January 1942, a total of 26 allied states subscribed to the principles embodied in the Charter, by signing the Declaration by United Nations (Declaration by United Nations [done 1 January 1942, entered into force 1 January 1942] 204 LNTS 381). See M Benouna, ‘Atlantic Charter (1941)’ in R Wolfrum (ed), Max Planck Encyclopedia of International Law (OUP 2006– , online edition [www.mpepil.com]). On contemporary interpretations of the Atlantic Charter by the Allied leaders, see Fisch, The Right of Self-Determination of Peoples: Domestication of an Illusion?, 188. 59 BDEEP, 2 FO 371/31587/2664, ‘The Sudan’: minute by PS Scrivener to Sir M Peterson on the Anglo-Egyptian treaty (22 May 1942), D Newbold to RC Mayall, 9 February 1942 copied therein (emphasis in original). See also BDEEP, 7 FO 371/31587/4388, ‘Note on further association of Sudanese with local and central government in the Sudan’: note by D Newbold on devolution to the Governor-General’s Council (10 September 1942): ‘A strong stimulus … to political thinking in the Sudan was applied, in the winter of 1941 and spring of 1942, by … the promulgation of the Atlantic Charter in August 1941 with the consequent commentaries in the world’s press and broadcasts, and the adherence to the Charter by the 26 Allied Nations proclaimed in January 1942.’ 60 BDEEP Ser B Vol 5, 1, FO 371/31587/2664, Despatch no 536 from Sir M Lampson to Mr Eden. Enclosures: despatches from Sir H Huddleston, (22 May 1942), Enclosure 2 to 1. 61 Daly, Imperial Sudan, 160; see also BDEEP Ser B Vol 5, 10 FO 371/31587/4388, Letter from Sir M Lampson (British Ambassador to Egypt) to Sir A Cadogan (Permanent Under-Secretary of State, Foreign Office) (11 October 1942). 62 BDEEP Ser B Vol 5, 1, FO 371/31587/2664, Despatch no 536 from Sir M Lampson to Mr Eden. Enclosures: despatches from Sir H Huddleston (22 May 1942), letter from D Newbold to Ibrahim Ahmad, Enclosure 3 to 1. 63 BDEEP Ser B Vol 5, 1, FO 371/31587/2664, Letter from D Newbold to Ibrahim Ahmad (29 April 1942), Enclosure 3 to 1. 64 Ibid. 65 See BDEEP Ser B Vol 5, 11, FO 371/31587/5145, Letter from Sir H Huddleston to Sir M Lampson (18 November 1942). 66 In a circular note to all governors and heads of department, Newbold instructed them not to discuss the memorandum with the Sudanese: ‘the matter is closed’. ‘Extract from the circular note by D Newbold to all governors and all heads of department, 2 May 1942’ included in BDEEP Ser B Vol 5, 1, FO 371/31587/2664, Despatch no 536 from Sir M Lampson to Mr Eden. Enclosures: despatches from Sir H Huddleston (22 May 1942). 67 Ibid, Enclosure 1 to 1: dispatch from Sir H Huddleston to Sir M Lampson, 12 May 1942. 68 Ibid. 69 Ibid. The Pasha himself would continue to warn British officials along these lines. See also BDEEP Ser B Vol 5, 20, FO 371/41363/1418, note by ES Atiyah [a Lebanese employee in the Civil Secretary’s office] of PS Scrivener’s interviews with Sayyid Abd al-Rahman al-Mahdi and Sayyid Ali al-Mirghani (5 March 1944): ‘… it would be unjust to reward one party at the expense of the other. If the British felt that they owed Egypt something for the help she had given them in the war, the Sudanese had nothing to say to that, provided they were not made to pay the price. They had helped Britain in a more positive way than Egypt and expected Britain to reward them by a greater recognition of their national aspirations.’ 70 BDEEP Ser B Vol 5, 2, FO 371/31587/2664, ‘The Sudan’: minute by PS Scrivener to Sir M Peterson on the Anglo-Egyptian treaty (26 May 1942) 10. The memo is dated 26 May 1942, but, at the time of writing, Scrivener was not aware of the Graduates’ Congress demand. See BDEEP Ser B Vol 5, 3, FO 371/31587/2664, ‘The Sudan’ minutes by DS Laskey and PS Scrivener (12–13 June 1942) (‘when I wrote that minute I was unaware of these developments’). 71 Ibid. 72 BDEEP Ser B Vol 5, 2, FO 371/31587/2664, ‘The Sudan’: minute by PS Scrivener to Sir M Peterson on the Anglo-Egyptian treaty (26 May 1942) 10. See also BDEEP Ser B Vol 5, 6, FO 371/31587/3736, ‘The Sudan’: memorandum by the Egyptian Department (1 September 1942). 73 BDEEP Ser B Vol 5, 2, FO 371/31587/2664, ‘The Sudan’: minute by PS Scrivener to Sir M Peterson on the Anglo-Egyptian treaty (26 May 1942) 10. 74 Newbold himself kept reminding both the Cairo Embassy and the Foreign Office that the Atlantic Charter had created great expectations within Sudanese society, and that the Sudanese were not oblivious to recent events in India, Syria, and Iraq. Newbold saw the Sudan Political Service acting as a ‘guardian for a ward who will eventually become of age’. As a ‘guardian’, Newbold was apprehensive of the risk of alienating the more ‘responsible’ children by making them ‘suffer for the follies or vanities of young hot-heads’: BDEEP Ser B Vol 5, 7, FO 371/31587/4388, ‘Note on further association of Sudanese with local and central government in the Sudan’: note by D Newbold on devolution to the Governor-General’s Council (10 September 1942). 75 Cited in Johnson’s footnote to BDEEP Ser B Vol 5, 6, FO 371/31587/3736, ‘The Sudan’: memorandum by the Egyptian Department, FO, on the Anglo-Egyptian treaty (1 September 1942). 76 BDEEP Ser B Vol 5, 15 FO 371/35736/4986, letter from D Newbold to G ER Sandars on Egypt and the status of the Sudan (24 November 1943). 77 BDEEP Ser B Vol 5, 7 FO 371/31587/4388, Note by D Newbold on devolution to the Governor-General’s Council (10 September 1942). Newbold would also note that: ‘It was obvious that the Sudan, like other African dependencies, could not be oblivious to progressive trends of thought and declarations in Great Britain and the United States, and in February 1942 I began to study further lines of advance in associating the Sudanese (and especially the educated Sudanese) with local and central Government, and had begun to draft proposals’. 78 BDEEP Ser B Vol 5, 11, FO 371/31587/5145, letter from Sir H Huddleston to Sir M Lampson (18 November 1942). 79 See BDEEP Ser B Vol 5, 13, FO 371/35576/1773, Despatch no 343 from Sir M Lampson to Mr Eden. Enclosure: despatch from Sir H Huddleston (21 March 1943) (10 April 1945). 80 The fact that the Council was established only for the Northern States reflected Britain’s diverging handling of Northern and Southern Sudan. Daly, Imperial Sudan, 236. Throughout this period, the British maintained an ambivalent position towards the South. At times the Sudan Government entertained the idea of a separate future for the South. Eventually, this idea was abandoned, as it was unpopular with the Sudanese elite in the North as well as Egypt. In July 1947, Civil Secretary Robertson would issue an internal Sudan Government document affirming that ‘the South is historically, geographically and economically connected inextricably with the Northern Sudan’, and soon after called for a separate administration conference for the South in Juba to remedy the lack of any consultation of the Southern Provinces. However, this conference consisted mostly of the local administrative elite and provided only a ‘gloss’ of consultations for decisions already made. See Rolandsen & Daly, History of South Sudan, 60–63; Daly, Imperial Sudan, 236, citing Robertson Monthly Letter to Governors 97, May 11, 1946, SAD 524/10. 81 Daly, Imperial Sudan, 150. For the internal debates on whether there was a need to consult the Egyptians see BDEEP Ser B Vol 5, 13, FO 371/35576/1773, Despatch no 343 from Sir M Lampson to Mr Eden. Enclosure: despatch from Sir H Huddleston (21 March 1943) (10 April 1945). 82 The other delegates were taken from the merchant class and the ‘moderate’ educated class, mainly senior Government officials. AI Abushouk, ‘The Anglo-Egyptian Sudan: From Collaboration Mechanism to Party Politics, 1898–1956’ (2010) 38 Journal of Imperial and Commonwealth Policy 207, 215. 83 Daly, Imperial Sudan, 150. 84 Abushouk, ‘Sudan: From Collaboration Mechanism to Party Politics’, 215–16. 85 See BDEEP Ser B Vol 5, 38, FO 371/45986/3128, letter from RL Speaight to PS Scrivener explaining why a statement on the Southern Sudan would be undesirable. Enclosures: letter from Civil Secretary’s Office, Khartoum to the Chancery, Cairo (3 September 1945), forwarding supporting documents (15 September 1945): Extract from a memorandum from Ismail al-Azhari to Sir H Huddleston, 6 Oct 1943, giving the views of the Graduates’ Congress on the legislation concerning an Advisory Council for Northern Sudan. 86 BDEEP Ser B Vol 5, 14, FO 371/35576/4998, Letter from FD Rugman (acting Governor-General) to TA Shone (Counsellor at the British Embassy in Cairo) (8 November 1943). 87 See BDEEP Ser B Vol 5, 27, FO 371/45972/97, report from SPIS [Sudan Political Intelligence Service] no 44 for November (12 December 1944). 88 BDEEP Ser B Vol 5, 30, FO 141/1024/3, Letter from JW Robertson to CE Fouracres (member of the Sudan Political Service) on the foundation of the Umma Party (8 April 1945); BDEEP Ser B Vol 5, 31 FO 371/46081/1575, Despatch no 55 from Sir H Huddleston to Lord Killearn (12 April 1945). 89 BDEEP Ser B Vol 5, 42, FO 371/45986/4163, Letter from JC Penney to EC Haselden (26 November 1945). 90 BDEEP Ser B Vol 5, 17, FO 371/41363/2121, Despatch from Mustafa al-Nahhas to Sir H Huddleston (1 January 1944). 91 Lord Killearn suggested going as far as threatening to cut off Egypt from its lifeline, the Nile, in order to safeguard Britain’s control over the Suez Canal Zone. See BDEEP Ser B Vol 5, 25, FO 141/1013/22, Despatch no 44 from Lord Killearn to Sir H Huddleston on British interests in the Sudan and the possibility of using the Nile Waters as a means of resisting Egyptian pressure (7 February 1945). Lord Killearn would later write that Britain should use the Nile as a stick ‘with which to beat the Egyptians’ if the circumstances ever so required. See Ginat, Egypt and the Struggle for Power in Sudan, 95–96 and footnotes cited therein. 92 BDEEP Ser B Vol 5, 16 FO 371/41363/264, Letter from Lord Killearn to Sir A Cadogan (29 December 1943). 93 BDEEP Ser B Vol 5, 22, FO 371/45973/99, Despatch no 128 from Sir H Huddleston to Lord Killearn on the proposed gift to the Gordon Memorial College (7 Dec 1944). 94 See, eg, BDEEP Ser B Vol 5, 31, FO 371/46081/1575, Despatch no 55 from Sir H Huddleston to Lord Killearn (12 April 1945): ‘Strategic considerations apart, our attitude to Egypt in the event of a serious Anglo-Egyptian dispute on the Sudan question must, I submit, depend primarily on the view we take of our obligations to the Sudanese and of the objectives of our administration in the Sudan. … The Atlantic Charter, and the declarations made by the responsible spokesmen of the Allied Democracies that have followed it have emphasised for all nations their right to self-determination.’ 95 BDEEP Ser B Vol 5, 38, FO 371/45985/3088, ‘Financial aid for the Sudan’ and ‘The future of the Sudan’, Memoranda by Sir H Huddleston (11–12 Sept 1945). He further warned that compared to Egypt, Britain started with ‘a handicap in the competition for the Sudan’s favour’, due to the Sudan’s natural geographical, racial, and lingual, religious, and economic ties. In the absence of such ties, Britain had to build friendship on the basis of material aid. ‘Political concessions, however generous, will not be sufficient basis for lasting friendship: what appears to the governing power to be a concession is to the ruled merely the granting, usually belated, of a right.’ 96 Ibid. 97 See D Johnson (ed) annotation to BDEEP Ser B Vol 5, 40, FO 371145986, no 3119 (24 September 1945). 98 BDEEP Ser B Vol 5, 40, FO 371/45986/3119, Draft statement to the Advisory Council for the Northern Sudan on consultation prior to any change in the Sudan’s constitutional position, forwarded by WH Luce (Huddleston’s private secretary) to PS Scrivener (24 September 1945). Civil Secretary Robertson delivered this promise to the Advisory Council in November 1945 (see Hanes III, The Sudan and Anglo-Egyptian Relations, 22). 99 Daly, Imperial Sudan, 207. These fears came very close to materializing in 1946: see Section III. 100 BDEEP Ser B Vol 5, 31, FO 371/46081/1575, Despatch no 55 from Sir H Huddleston to Lord Killearn (12 April 1945). 101 Johnson, BDEEP Ser B Vol 5, xxxv. 102 Hanes III, The Sudan and Anglo-Egyptian Relations, 21. 103 Ginat, Egypt and the Struggle for Power in Sudan, 98. 104 BDEEP Ser B Vol 5, 47, PREM 8/1388/1/CP(46)/17, ‘Revision of the Anglo-Egyptian treaty of 1936’: Cabinet memorandum by Mr Bevin (18 January 1946). 105 Ibid. 106 As quoted in Hanes III, The Sudan and Anglo-Egyptian Relations, 24. 107 Ibid, 24–25. 108 Alternatively spelled as ‘Sidqi’. This article follows the spelling of ‘Sidky’, in line with the spelling found in official UN documents, but maintains the alternative spelling when quoting from other sources. 109 Hanes III, The Sudan and Anglo-Egyptian Relations, 25. 110 Daly, Imperial Sudan, 208, citing TNA FO 371/53250, Huddleston to Killearn (13 February 1946); Hanes III, The Sudan and Anglo-Egyptian Relations, 29. 111 Ibid, 31; Holt, A Modern History of the Sudan, 152–53. 112 BDEEP Ser B Vol 5, 35, FO 371/45986/3152, Letter from Ismail al-Azhari to Mr Attlee and Sidqi Pasha (23 August 1945); BDEEP Ser B Vol 5, 42, FO 371/45986/4163, Letter from JC Penney to EC Haselden (26 November 1945). 113 BDEEP Ser B Vol 5, 44, FO 371/53249/336, Letter (reply) from JW Robertson to Ismail al-Azhari (23 December 1945). 114 Hanes III, The Sudan and Anglo-Egyptian Relations, 32. 115 See Hanes III, The Sudan and Anglo-Egyptian Relations, 35, discussing a 1946 telegraph by the public relations officer of the Sudan Government, in which the officer explained that the word union was a rather loose translation of the Arabic word ‘ittihad. The officer argued that the meaning of ‘ittihad was closer to ‘association’ than to ‘amalgamation’. See also Daly, Imperial Sudan, 165–67. 116 Ginat, Egypt and the Struggle for Power in Sudan, 104. 117 Daly, Imperial Sudan, 208. 118 Hanes III, The Sudan and Anglo-Egyptian Relations, 32–34. 119 Ibid, 33. 120 Daly, Imperial Sudan, 208; Hanes III, The Sudan and Anglo-Egyptian Relations, 33. 121 See annotation to BDEEP Ser B Vol 5, 54. 122 HC Deb 26 March 1946, vol 421, col 217. Two days later, Bevin wrote to the Embassy in Cairo, commenting on Huddleston’s proposals for such consultations. While the Embassy’s position had been that the Sudanese should not be consulted until there was a good prospect of a favourable outcome of the negotiations on the Egyptian question, Bevin asked rhetorically: ‘is there not something to be said for giving Sudanese politicians some local interest, in the form of proposed consultation, to distract their minds from less convenient activities such as present visits to Egypt?’: BDEEP Ser B Vol 5, 53 FO 371/53250/1195, Outward telegram no 588 from Mr Bevin to RJ Bowker (28 March 1946). 123 BDEEP Ser B Vol 5, 58, FO 371/53252/1743, Address delivered by Sir H Huddleston at the opening session of the Advisory Council for the Northern Sudan (17 April 1946). 124 Hanes III, The Sudan and Anglo-Egyptian Relations, 41. 125 Ibid, 42; Daly, Imperial Sudan, 210. 126 Hanes III, The Sudan and Anglo-Egyptian Relations, 46. 127 BDEEP Ser B Vol 5, 64, PREM 8/1388/1, ‘Anglo-Egyptian treaty negotiations, position on 4th July 1946’: note by Lord Stansgate (Secretary of State Air) to Mr Attlee, Appendix ‘C’ (July 1946). 128 BDEEP Ser B Vol 5, 65, PREM 8/1388/1, Inward telegram no 33 from Lord Stansgate to Mr Attlee, reporting Sidqi Pasha’s initial reaction to the British draft of the Sudan Protocol (23 July 1946). For the British reading of Sidqi’s understanding of ‘symbolic sovereignty’, see BDEEP Ser B Vol 5, 83, FO 371/53312/4117, Inward telegram no 159 from Sir R Campbell to FO reporting Sidqi’s interpretation of sovereignty (3 October 1946). 129 See, eg, BDEEP Ser B Vol 5, 65, PREM 8/1388/1, Inward telegram no 33 from Lord Stansgate to Mr Attlee, reporting Sidqi Pasha’s initial reaction to the British draft of the Sudan Protocol (23 July 1946): ‘We suggested that from everyone’s point of view it seemed advisable not to raise this question specifically but leave it as it had been left.’ 130 BDEEP Ser B Vol 5, 70, FO 371/53254/3385, Outward telegram no 43 from Mr Attlee to Lord Stansgate, on the legal issue of sovereignty (10 August 1946). See also BDEEP Ser B Vol 5, 72 FO 371/53311/3666, Inward telegram no 101 from Lord Stansgate to Mr Bevin (27 August 1946), reporting Sidqi Pasha’s arguments for recognising Egyptian sovereignty over the Sudan: ‘Sir R. Campbell [the British Ambassador in Egypt] … countered … that there were conflicting views about the sovereignty amongst jurists and that anyhow we wanted to deal with the matter as a practical one.’ 131 BDEEP Ser B Vol 5, 66, PREM 8/1388/1/CM(76)/46, Cabinet decision to resist Egyptian claims to sovereignty over the Sudan (1 August 1946). See also BDEEP Ser B Vol 5, 69, PREM 8/1388/1, Outward telegram no 30 (reply) from Mr Attlee to Lord Stansgate, (4 August 1946): ‘we can accept no form of words in the protocol which admit the sovereignty of the Egyptian crown’. 132 BDEEP Ser B Vol 5, 73, FO 371/53255/3718, Minute by Sir O Sargent to Mr Bevin, proposing alternative drafts of the Sudan protocol (27 August 1946). 133 BDEEP Ser B Vol 5, 75, FO 371/53255/3707, Inward telegram no 608 from Mr Bevin to Sir O Sargent, on possible consequences of recognising Egyptian sovereignty over the Sudan (29 August 1946). 134 Robertson openly admitted to Mayall that his premature distribution of the reports ‘may easily cause alarm and excitement in Egypt and we shall be shot at again by the Embassy for doing something “salient” and putting the fat into the fire. I don’t see how this can be avoided.’ TNA FO 371/53328 CS/SCR/1.A.9.2 Robertson to Mayall (17 July 1946). 135 Hanes III, The Sudan and Anglo-Egyptian Relations, 63. 136 Bevin’s suggested clause provided that: The Egyptian Government declare that the preceding provisions of this Protocol do not prejudice the claim of His Majesty the King of Egypt to be the Sovereign of the Sudan. The Government of the United Kingdom, while pointing out that it will be for the Sudanese people to decide upon their future in accordance with paragraph 2 above and declining to make any pronouncement on the question of sovereignty, declare that nothing in the preceding Protocol prejudices that question. BDEEP Ser B Vol 5, 79, FO 71153255, no 3714, Outward telegram no 17 from Mr Bevin to Lord Stansgate, forwarding text of re-drafted Sudan protocol (31 August 1946). 137 BDEEP Ser B Vol 5, 46, FO 371/53312/4066, Inward telegram no 149 from Lord Stansgate to Mr Bevin, conveying the text of the Egyptian reply to the British draft protocol (28 September 1946). 138 Hanes III, The Sudan and Anglo-Egyptian Relations, 63–64. 139 TNA FO 371/53314/4213, ‘Anglo-Egyptian treaty’: FO minutes of a meeting between Mr Bevin and the British treaty delegation in Paris on the Sudan (5 October 1946). 140 See, eg, letter from TP Creed, JWE Miller and JW Robertson to Sir H Huddleston, 6 November 1946, enclosed with BDEEP Ser B Vol 5, 102, PREM 8/1388/2 letter from Sir H Huddleston to Mr Attlee (9 November 1946): ‘This government has for very many years with the encouragement of His Majesty’s Government stressed the joint sovereignty of Great Britain and Egypt, adopting roughly speaking the line taken in chapter 5 of “The Anglo-Egyptian Sudan” written by Sir Harold MacMichael, a former Civil Secretary of this government and read by educated Sudanese.’ 141 TNA FO 371/53314/4213, ‘Anglo-Egyptian treaty’: FO minutes of a meeting between Mr Bevin and the British treaty delegation in Paris on the Sudan (5 October 1946). 142 Hanes III, The Sudan and Anglo-Egyptian Relations, 64–67. 143 J Robertson, Transition in Africa: From Direct Rule to Independence (C Hurst & Co 1974) 96. 144 BDEEP Ser B Vol 5, 85, FO 371/53257/4334, Letter from JW Robertson to GH Hancock (acting Civil Secretary), relaying the governor-general’s and civil secretary’s reactions to the draft Sudan protocol (9 October 1946). 145 Ibid. 146 Hanes III, The Sudan and Anglo-Egyptian Relations, 72–73. 147 BDEEP Ser B Vol 5, 88, FO 371/53257/4390, FO record of second meeting with the Egyptian delegation (19 October 1946). 148 Ibid. 149 Ibid. 150 BDEEP Ser B Vol 5, 91, PREM 8/1388/1/DO 30(46), Cabinet Defence Committee minutes (24 October 1946). 151 Ibid, Annex: minute by Lord Jowitt (Lord Chancellor) to Mr Bevin on sovereignty. 152 Ibid. 153 Ibid. 154 Ibid. 155 Ibid. 156 BDEEP Ser B Vol 5, 92, FO 371/53316/4455, Foreign Office record of an understanding reached at the fourth meeting between Mr Bevin and the Egyptian delegation (24 October 1946). 157 Ibid. 158 BDEEP Ser B Vol 5, 93, FO 371/53317/4634, Foreign Office record of the fifth and final meeting with the Egyptian delegation (25 October 1946). 159 See BDEEP Ser B Vol 5, 99, FO 371/53318/4885, Translation by FO of a note prepared by Sidqi Pasha for the Egyptian treaty delegation giving the Egyptian interpretation of the Sudan protocol (7 Nov 1946): In one of the drafts presented by the British, it was foreseen that the provisions of the Protocol did not hinder the Sudanese from choosing later a status carrying with it the complete independence of their country, in conformity with the principles of the Atlantic Charter. I struck out this text and I formally refused any mention in the Protocol of even an eventual renunciation of Egyptian sovereignty. 160 Hanes III, The Sudan and Anglo-Egyptian Relations, 81. 161 Ibid; Daly, Imperial Sudan, 213; Ginat, Egypt and the Struggle for Power in Sudan, 100. 162 BDEEP Ser B Vol 5, 96, PREM 8/1388/2, Inward telegram no 46 from Sir H Huddleston to Mr Attlee and Mr Bevin (3 November 1946); Hanes III, The Sudan and Anglo-Egyptian Relations, 81–82; BDEEP Ser B Vol 5, 98 FO 371/53259/4740, Aide memoire by JW Robertson. Annex: diary of events since 12 October (5 November 1946). 163 FO 371/53259/4632, Inward telegram no 1642, Bowker to FO (5 Nov 1946), cited in BDEEP Ser B Vol 5, 96, PREM 8/1388/2, Inward telegram no 46 from Sir H Huddleston to Mr Attlee and Mr Bevin (3 November 1946). 164 HC Deb 28 October 1946, vol 495, col 296. 165 BDEEP Ser B Vol 5, 98 FO 371/53259/4740, Aide memoire by JW Robertson. Annex: diary of events since 12 October (5 November 1946). 166 BDEEP Ser B Vol 5, 96, PREM 8/1388/2, Inward telegram no 46 from Sir H Huddleston to Mr Attlee and Mr Bevin (3 November 1946). See also BDEEP Ser B Vol 5, 98 FO 371/53259/4740, Aide memoire by JW Robertson. Annex: diary of events since 12 October (5 November 1946). 167 BDEEP Ser B Vol 5, 97, PREM 8/1388/2, Outward telegram no 52: from Mr Attlee to Sir H Huddleston (5 November 1946). 168 BDEEP Ser B Vol 5, 99, FO 371/53318/4885, Translation by FO of a note prepared by Sidqi Pasha for the Egyptian treaty delegation giving the Egyptian interpretation of the Sudan Protocol (7 November 1946). 169 See P Fauchille, Traité de droit international public (Rousseau & Co 1923). 170 Article 76 of the UN Charter provides that: The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be: (a) to further international peace and security; (b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; (c) to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and (d) to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals, and also equal treatment for the latter in the administration of justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80. 171 BDEEP Ser B Vol 5, 99, FO 371/53318/4885, Translation by FO of a note prepared by Sidqi Pasha for the Egyptian treaty delegation giving the Egyptian interpretation of the Sudan Protocol (7 November 1946). 172 BDEEP Ser B Vol 5, 100, PREM 8/1388/2, Inward telegram no 1525 from Mr Bevin (New York) to Mr Attlee (8 November 1946). 173 BDEEP Ser B Vol 5, 104, PREM 8/1388/2, Inward telegram no 1613 from Mr Bevin to Mr Attlee (12 November 1946). 174 BDEEP Ser B Vol 5, 103, PREM 8/1388/2, Outward telegram no 2079 from Mr Attlee to Mr Bevin, reporting and commenting upon the governor general’s assessment of the political situation in the Sudan (11 November 1946). 175 BDEEP Ser B Vol 5, 103, PREM 8/1388/2, Outward telegram no 2166, Huddleston to Bevin (14 November 1946). 176 Attlee wrote to Bevin that backtracking now would throw their defence arrangements in the Middle East ‘into the melting pot’. Another risk would be, according to Attlee, being driven to the International Court of Justice by the Egyptians over the sovereignty issue. The legal service had opined that in such a scenario the risk of a decision adverse to British interests would be very high. BDEEP Ser B Vol 5, 103, PREM 8/1388/2, Outward telegram no 2079 from Mr Attlee to Mr Bevin, reporting and commenting upon the governor general’s assessment of the political situation in the Sudan (11 November 1946). For Bevin’s determination, see BDEEP Ser B Vol 5, 104, PREM 8/1388/2, Inward telegram no 1613 (reply) from Mr Bevin to Mr Attlee (12 November 1946). 177 BDEEP Ser B Vol 5, 105, FO 371/53260/4861, Notes by Sir H Huddleston for and in discussion with Mr McNeil (12 November 1946). 178 TNA FO 371/53260/4861, Minute by H McNeil (12 November 1946). 179 BDEEP Ser B Vol 5, 106, FO 371/53260/4860, Letter from Sir H Huddleston to Mr McNeil (13 November 1946). 180 BDEEP Ser B Vol 5, 108, PREM 8/1388/2/CM 96(46)1, ‘Anglo-Egyptian treaty negotiations: Sudan protocol’: Cabinet conclusions (14 November 1946). 181 TNA FO 371/53261/4936, Telegram from Bevin to Sargent (23 November 1946). 182 BDEEP Ser B Vol 5, 115, PREM 8/1388/3, Letter from Mr Attlee to Sir H Huddleston reaffirming the right of the Sudanese to achieve independence (30 November 1946). Attlee had already signed the letter to be sent to Huddleston, when Foreign Office Permanent Under-Secretary Orme Sargent asked him to sign another one, this time without the following words: ‘The Egyptian Prime Minister and the British Foreign Secretary agreed that as the new Anglo-Egyptian Treaty was to be based on the United Nations Charter which affirms the independence of nations, it was unnecessary to repeat what has already been specified in the United Nations Charter’. Sargent explained this deletion on the ground that ‘there did not appear anything in the Charter which does actually “affirm the independence of nations”’, implying that an express guarantee would have to be included in the new Protocol. See TNA PREM 8/1388/3, Telegram no 43/216 O Sargent to Prime Minister (27 November 1946); see also TNA PREM 8/1388/3, Telegram no 2005 E Bevin to Foreign Office (27 November 1946). A similar issue would surface in January 1947 when Lord Stansgate tabled the idea to have the Egyptians agree on a formula about the future of the Sudan that would explicitly reference the UN Charter. Legal advisers of the Foreign Office pointed out that neither article 73 nor article 76 explicitly mentioned independence for non-self-governing territories and that therefore such a formula of words could be interpreted by the Egyptians as not guaranteeing the right of the Sudanese to freely choose their status. TNA FO 371/62941/82, Minutes by DMH Riches (20 January 1947); TNA FO 371/62941/83, Minutes by RG Howe, WE Becket and O Sargent (21 January 1947). See also TNA FO 371/62941/93, RG Howe to Lord Stansgate (29 January 1947). 183 Hanes III, The Sudan and Anglo-Egyptian Relations, 95. 184 TNA FO 371/53319/5059, inward telegram no 1779 from Bowker to FO (29 Nov 1946). Hanes III, The Sudan and Anglo-Egyptian Relations, 99–100. 185 BDEEP Ser B Vol 5, 118, FO 371/53262/5219, Aide memoire by Sir O Sargent on the interpretation of the Sudan Protocol handed to Amr Pasha (6 December 1946). 186 BDEEP Ser B Vol 5, 121, FO 371/53262/5337, Inward telegram no 1885 from RJ Bowker to FO (14 December 1946) (the statement was made on 7 December). 187 Hanes III, The Sudan and Anglo-Egyptian Relations, 100. 188 Alternatively spelled as ‘Nokrashi’ or ‘Nuqrashi’. This article follows the spelling of ‘Nokrashy’, in line with the spelling found in official UN documents, but maintains the alternative spelling when quoting from other sources. 189 Daly, Imperial Sudan, 216. See also BDEEP Ser B Vol 5, 122, FO 371/53321/5355, Inward telegram no 1904 from R J Bowker to FO (17 December 1946) reporting press versions of Nokrashy’s statement in the Chamber: ‘everybody must know that when I say “unity of Egypt and the Sudan under the Egyptian Crown” I mean a permanent unity and I hope that the world knows that I express the opinion of all Egyptians’. 190 Members of the Sudan Political Service were, however, divided over the question of whether inhabitants of Southern Sudan should be part of the Sudanese that would exercise this right. Administrators in the South did not trust Northern Sudanese rule and advocated for advanced safeguards, even perhaps a period of ‘trusteeship’, before the South could join the North. When the Sudan Government turned down these options, and independence moved forward regardless, the British administrators of the Southern Provinces would themselves speak of a ‘sellout’, now by the British of Southern Sudan. Rolandsen & Daly, History of South Sudan, 63; Daly, Imperial Sudan, 237–38. 191 See TNA PREM 8/1388/3, Telegram no 47/60, O Sargent to Prime Minister (3 April 1947), conveying worries about giving the appearance of making any further concessions. In the same telegram the Permanent Under-Secretary of State proposed an alternative solution to the Prime Minister: ‘should relations with Egypt continue to deteriorate, it might be wise to examine the means of replacing the present minority regime in Egypt by a more representative form of Government’. 192 O Sargent, Foreign Office to New York, no 2411, (22 November 1946), cited in WT Hanes III, ‘Sir Hubert Huddleston and the independence of the Sudan’ (1992) 20(2) Journal of Imperial and Commonwealth History 248. For a more self-critical account by a British official, admitting that it was due to Huddleston’s ‘indiscretions’, rather than Sidky’s, that the negotiation had collapsed, see BDEEP Ser B Vol 5, 129 FO 371/62942/723, Letter from Lord Stansgate to Mr Bevin, forwarding a memorandum on the current state of the Anglo-Egyptian treaty negotiations (8 February 1947): The fact is that both Prime Ministers, and particularly Sidki, have been doing their best to persuade their public opinion to come to agreement. Sidki might have been the more helpful. We made much of his indiscretions and so discredited him and, perhaps, contributed to the King’s decision to dismiss him, but in point of fact the first indiscretion, that is to say, the first declaration, in recent time, of independence for the Sudan was made by the Governor-General in his speech to the Advisory Council in April, where being a servant of both parties he declared his policy without consulting Egypt, thus going, as the Egyptians say, outside his proper function. Stansgate was in the minority and was eventually taken out of the UK’s negotiating team for being too inclined to understand the Egyptian viewpoint. 193 Huddleston was quietly forced to resign after the collapse of the negotiations, in March 1947. See Hanes III, The Sudan and Anglo-Egyptian Relations, 109–110. 194 BDEEP Ser B Vol 5, 22, FO 371/45973/99, Despatch no 128 from Sir H Huddleston to Lord Killearn on the proposed gift to the Gordon Memorial College (7 Dec 1944). 195 Sudan Government Civil Secretary JW Robertson envisaged that the process of Sudanisation would take place over a period of 20 years, but officials of the Foreign Office who pushed for the rapid introduction of British-trained Sudanese expressed different views: see BDEEP Ser B Vol 5, 49, FO 371/53329/865, Despatch no 241 from R J Bowker to Mr Bevin. Enclosure: note by J W Robertson for the Governor-General’s Council (23 December 1945); BDEEP Ser B Vol 5, 52, FO 371/53329/865, Letter from PS Scrivener to R J Bowker 18 March 1946; see also BDEEP Ser B Vol 5, 57, FO 371/53251/1634, Outward telegram no 65 from Sir R Campbell to Sir H Huddleston, commenting on J W Robertson’s principles for Sudanisation (13 April 1946). 196 See, eg, BDEEP Ser B Vol 5, 123, FO 141/1024/3, Letter from JW Robertson to CE Fouracres on the foundation of the Umma Party (8 April 1945); BDEEP Ser B Vol 5, 22, FO 371/45973/99, Despatch no 128 from Sir H Huddleston to Lord Killearn on the proposed gift to the Gordon Memorial College (7 December 1944). See also BDEEP Ser B Vol 5, 42, FO 371/45986/4163, Letter from JC Penney to EC Haselden (26 November 1945), referring to the Graduates’ Congress as ‘a movement with which a large number of the more able and more level headed of the educated Sudanese refuse to be associated’. 197 TNA FO 371/53263/5451, Campbell to Sargent (25 December 1946). 198 Bevin had already referred to the UN Charter a few months earlier, when in his instructions to Campbell in December 1946 he noted that ‘His Majesty’s Government cannot directly or by implication involve themselves in a compact, in defiance of the whole spirit of the United Nations Charter, to deny the possibility of Sudanese free choice.’ BDEEP Ser B Vol 5, 125, FO 371/53263/5481, Outward telegram no 2170 from Mr Bevin to Sir R Campbell (28 December 1946). 199 BDEEP Ser B Vol 5, 127, FO 371/62939/128/CC2(47)8, Cabinet conclusions on Mr Bevin’s decision to risk a breakdown in treaty negotiations over the Sudan's right of self-determination (6 January 1947). 200 TNA FO 371/62939/85, Outward telegram no 56 from Bevin to Cairo Embassy (9 January 1947). See also TNA FO 371/62939/85, Foreign Office to Cairo (9 January 1947) in which Bevin claims that his drafting suggestions ‘clearly set out [Britain’s] obligations under the UN Charter’. 201 HC Deb 27 January 1947, vol 432, cols 616–20. 202 TNA FO 371/62940/209, Outward telegram no 117 from Bevin to Campbell (Cabinet distribution) (15 January 1947). See also TNA FO 371/62941/421, Lord Stansgate to RG Howe (17 January 1947), in which Lord Stansgate refers to ‘preserving the ultimate, and indeed, inherent rights of the Sudanese’. 203 TNA FO 371/62941/3781/1/16, Outward telegram no 173 from Bevin to Campbell (23 January 1947). 204 TNA FO 371/62941/402, Outward telegram no 191 Bevin to Campbell (25 January 1947). See also TNA FO 371/62941/402, Outward telegram no 194 Bevin to Campbell (25 January 1947). 205 TNA FO 371/62939/10, Letter from Campbell to Howe (27 December 1946). 206 BDEEP Ser B Vol 5, 124, FO 371/53263/5458, Outward telegram no 1942 from Sir R Campbell to Mr Bevin (24 December 1946). 207 Ibid. 208 See above Section II(A). 209 TNA FO 371/62939/10, Letter from Sir R Howe to Sir R Campbell (15 January 1947). 210 BDEEP Ser B Vol 5, 130, PREM 8/1388/3, Inward telegram no 557 from Sir R Campbell to Mr Bevin giving text of al-Nuqrashi’s statement on the breakdown of the treaty negotiations (3 March 1947). The British were aided by the fact that their intelligence services provided them with detailed reports of Egyptian classified documents, including an advance copy of Nokrashy’s speech at the UN. See, eg, TNA FO 371/62944/16, Top Secret, British Embassy to Foreign Office (28 April 1947); TNA FO 371/62945/3140 (10 July 1947). 211 TNA FO 371/62945/2377, Cairo Embassy to Foreign Office, enclosing a legal memorandum by A McDougal (25 June 1947). 212 TNA FO 371/62945/2198, Cairo Embassy to Foreign Office, enclosing a legal memorandum by P Lorraine (15 May 1947). 213 TNA FO 371/62945/2977, Minute by E Beckett to N Butler (20 June 1947). The head of the Egyptian Department opined that Britain should use the Lorraine-McDougal line of defence only as an absolutely last resort: TNA FO 371/62945/2977, DW Private Minutes, Lascelles to N Butler (1 July 1947). 214 TNA FO 371/62945/3102, Sir R Campbell to DW Lascelles, enclosing a legal opinion by A McDougal (26 June 1947). 215 TNA FO 371/62945/245, Foreign Office to Cairo from Mr DW Lascelles to Sir R Campbell, outlining the UK’s final preparation for the Security Council debates, including excerpts of a legal opinion by Sir E Beckett (5 July 1945) (emphasis in original). In the same correspondence Lascelles lamented that the issue of sovereignty had not been picked up earlier, but accepted that this was not only out of the question but also in the final analysis futile, as even if Britain’s sovereignty was recognized, ‘we should not, of course, have “won” the Sudan for all time, since we should still have been tied by the Charter as regards eventual self-determination’. 216 TNA FO 371/62945/3045, Minutes from DW Lascelles (7 July 1947). 217 Letter from the Prime Minister and Minister of Foreign Affairs of Egypt Addressed to the Secretary-General, 8 July 1947, S/410 (11 July 1947). 218 The representatives disputed each other’s historical narratives (for instance, the significance of the British role in defeating the Mahdi), legal qualifications and presentations of imperialism as vice or virtue. See, eg, UN SC, Official Records, 2nd year, 179th meeting (11 August 1947) 1881 and 1897. The protagonists also discussed the relevance of history. Nokrashy Pasha proclaimed: I could not fail to be astonished that here in the Security Council, in the very heart of the United Nations, I should be hearing such an unrestrained apology for nineteenth-century imperialism … I could hardly believe my ears when I heard Sir Alexander Cadogan declare that his country now takes pride in its record in Egypt and the Sudan. … I can understand why British imperialism must be cloaked by professions of high purpose. It has always advanced and entrenched itself, wherever its covetous gaze was centred, under the guise of its mission to redress “massacres”, to restore “government and administration”, and to abolish “corruption and incompetence”. (UN SC, Official Records, 2nd year, 179th meeting (11 August 1947) 1858) Cadogan retorted: Nokrashy Pasha seems to think that nineteenth-century imperialism and Nazism and Fascism were much the same thing. Let me illustrate one or two of the vital differences. The British found Egypt under an arbitrary though inefficient despotism. When they left, the elements of the rule of law had been established. Arbitrary despotism is a characteristic of Nazism. When the British came to Egypt they found slave-trading and slavery. When they left both these things had ceased. Slavery is a characteristic of Nazism. (UN SC, Official Records, 2nd year, 182nd meeting (13 August 1947) 1946) Nokrashy Pasha responded: I wish … to felicitate [Cadogan] on his discovery of the relevance of history. Having begun last week by dismissing history altogether, on Monday he retraced the story of the origin of the occupation of Egypt by the United Kingdom troops and the dire consequences which ensued. Of course, it is natural that the Egyptian and British versions of events of fifty or sixty years ago should differ. A man who finds himself looking into the muzzle of a loaded gun will not take the same view of the situation as the man whose finger is on the trigger of that gun. (UN SC, Official Records, 2nd year, 182nd meeting (13 August 1947) 1956) 219 UN SC, Official Records, 2nd year, 175th and 176th meetings (5 August 1947) 1752. 220 Egypt also invoked the primacy of the UN Charter over other treaties. See ibid, 1757: ‘In choosing to abide by the obligations of the Charter rather than by the obligations of the Treaty of 1936, Egypt is merely living up to her commitment to fifty-four other States, of which the United Kingdom is one. Under Article 103, it is our bounden duty to make that choice. For us and for the members of the Security Council the Charter takes precedence.’ 221 See also the final words of Nokrashy Pasha’s first speech on the matter before the Council, ibid, 1767: ‘We move no longer in the darkness of the nineteenth century. We live in the world of today, in the world of the Charter, in the world of collective security, in a world which cannot tolerate the ventures of imperialism.’ 222 Ibid, 1772. 223 Ibid, 1773. 224 UN SC, Official Records, 2nd year, 182nd meeting (13 August 1947) 1955. 225 Ibid, 1960. 226 Ibid, 1961. 227 UN SC, Official Records, 2nd year, 175th and 176th meetings (5 August 1947) 1770. 228 Ibid, 1771. 229 Ibid, 1783. 230 UN SC, Official Records, 2nd year, 192nd and 193rd meetings (22 August 1947) 2168. 231 UN SC, Official Records, 2nd year, 198th and 199th meetings (28 August 1947) 2292. The Brazilian representative had argued that [i]n face of a situation which presents no immediate danger to international peace … the Security Council is not justified in taking action, setting aside a treaty, but … should let the parties settle their differences “in conformity with the principles of justice and international law”, namely by having recourse to the usual methods of settlement provided by international law … The Egyptian people have shown their capacity for progress and are entitled to the enjoyment of full sovereignty. But peoples seeking liberty and independence must be the first to accept the rule of law, for law is the principal condition for the preservation of freedom. UN SC, Official Records, 2nd year, 189th meeting (20 August 1947) 2107–8. Most delegations, explicitly or impliedly, followed the analysis of the Brazilian delegate. The US representative, referring to the Brazilian statement as ‘[a] scholarly intervention’, argued that ‘[i]n face of a situation which presents no immediate danger to international peace … the Security Council is not justified in taking action, setting aside a treaty, but … should let the parties settle their differences “in conformity with the principles of justice and international law”’: UN SC, Official Records, 2nd year, 189th meeting (20 August 1947) 2114–16. Only the USSR, Poland and Syria argued that this dispute was clearly a matter for the Security Council. USSR: ibid, 2109 et seq; Poland: UN SC, Official Records, 2nd year, 182nd meeting (13 August 1947) 1961 et seq; UN SC, Official Records, 2nd year, 195th and 196th meetings (26 August 1947) 2282 et seq. The Syrian representative even argued that the continued situation in Egypt gave Egypt the right to self-defence under article 51 of the Charter: UN SC, Official Records, 2nd year, 195th and 196th meetings (26 August 1947) 2238 et seq. 232 The USSR argued it would be difficult for the Council to take any decision on the future of the Sudan, ‘[w]ithout any accurate information as to the aims of the Sudanese people’: ‘We do not know what the Sudanese want and what they are striving for.’: UN SC, Official Records, 2nd year, 189th meeting (20 August 1947) 2211. The Polish delegate stated that its government had ‘always been inspired, in the solution of national problems, by the principle of the self-determination of nations and peoples’ and that they believed ‘that this principle should be applied in the question under discussion’: UN SC, Official Records, 2nd year, 182nd meeting (13 August 1947) 1966. 233 The Chinese delegate argued that Egypt’s stake in the Sudan was ‘second, and second only to the Sudanese people’s right of self-determination’, and that the right of self-determination was ‘the foundation of the United Nations’: UN SC, Official Records, 2nd year, 198th and 199th meetings (28 August 1947) 2300. The Brazilian delegate noted that ‘the future of that country is in the hands of its people, according to the principle of self-determination laid down in the Charter, and … it cannot, therefore, be an object of barter through negotiations between other countries’: UN SC, Official Records, 2nd year, 195th and 196th meetings (26 August 1947) 2236. The Australian delegate remarked that: ‘Every representative around this table spoke in favour of the right of self-determination of the Sudanese.’: UN SC, Official Records, 2nd year, 201st meeting (10 September 1946) 2353. The right received a lukewarm response only from the Belgian representative, according to whom ‘the Belgian delegation has no intention of giving an opinion on the question whether the Sudanese should or should not be consulted. We simply want to emphasize that we do not consider that this aspect of the situation should be dealt with while the Council is considering the matter on the basis of Article 33 of the Charter.’: UN SC, Official Records, 2nd year, 195th and 196th meetings (26 August 1947) 2252. 234 UN SC, Official Records, 2nd year, 193rd meeting (22 August 1947) 2164: ‘The Council’s task is not merely one of supplying heroic remedies; on it lies the primary responsibility for keeping the peace, and it cannot place a premium on violence by saying that it will not move until the planes have begun to fly and the tanks have begun to roll.’ 235 Ibid, 2166. 236 Several resolutions were proposed asking the two parties to resume negotiations, but ultimately none of them was adopted. R Ginat, ‘Egypt’s Efforts to Unite the Nile Valley: Diplomacy and Propaganda, 1945–1947’ (2007) 43(2) Middle Eastern Studies 193, 201. See discussions from UN SC, Official Records, 2nd year, 198th and 199th meetings (28 August 1947) 2304–305; UN SC, Official Records, 2nd year, 200th meeting (29 August 1947) 2320–41; UN SC, Official Records, 2nd year, 201st meeting (10 September) 2344–63. 237 TNA FO 371/62945/3102, Sir R Campbell to DW Lascelles, enclosing a legal opinion by A McDougal (26 June 1947). 238 TNA FO 371/62941/402, Bevin to Campbell (25 January 1947) (emphasis added). 239 TNA FO 371/62940/209, Outward telegram no 117 from Bevin to Campbell (Cabinet distribution) (15 January 1947). See also TNA FO 371/62941/421, Lord Stansgate to RG Howe (17 January 1947), in which Lord Stansgate refers to ‘preserving the ultimate, and indeed, inherent rights of the Sudanese’. The fact that during the debates at the Security Council, the UK also wished to score some points at the political level, presenting itself as a natural champion of self-determination, does not deprive the invocation of self-determination and the Charter of its legal significance. Rather, what matters, for instance, for the purposes of identifying customary international law, is that practice is not ‘motivated solely by such other [extralegal] considerations’. See Draft conclusions on identification of customary international law, with commentaries, adopted by the International Law Commission at its seventieth session in 2018 (2018) II Part Two YILC, Commentary to Conclusion 9 (139). 240 See, eg, Shaw, International Law, 199–200, who notes that: Practice since 1945 within the UN, both generally as regards the elucidation and standing of the principle and more particularly as regards its perceived application in specific instances, can be seen as having ultimately established the legal standing of the right in international law. This may be achieved either by treaty or by custom, or indeed, more controversially, by virtue of constituting a general principle of law. All these routes are relevant … The UN Charter is a multilateral treaty that can be interpreted by subsequent practice, while the range of state and organization practice evident within the UN system can lead to the formation of customary law. See also Higgins, Problems and Process, 112–13. For the notion that the Charter itself was merely codifying an existing principle of international law, see M Lachs, ‘The Law in and of the United Nations’ (1961) 1 Indian Journal of International Law 429, 432. 241 BDEEP Ser B Vol 5, 256, FO 3/1/90911/351, Note from the Egyptian government to the British government concerning self-government and self-determination for the Sudan (2 November 1952). 242 FO 371/96911/351, W Morris, ‘Rough note on the Egyptian proposals about the Sudan’ (5 November 1952) cited in BDEEP Ser B Vol 5, 256, FO 3/1/90911/351, Note from the Egyptian government to the British government concerning self-government and self-determination for the Sudan (2 November 1952). It is noteworthy here that the Foreign Office’s proposed solution was not to avoid using the phrase ‘legal right’ to self-determination, but to avoid ‘right’ without any qualification. This suggests that the distinction between a legal and political right may initially not have been as significant as subsequent literature would suggest. For the view that references to self-determination in the UN Charter referred to ‘moral’ as opposed to ‘legal’ rights, as well as discussion of the travaux préparatoires of the Charter, see Quane, ‘The United Nations and the Evolving Right to Self-Determination’, 540. 243 See Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the Egyptian Government concerning self-government and self-determination for the Sudan (12 February 1953) [1953] UKTS 47, preamble. 244 Holt and Daly, A History of the Sudan, 111. 245 Ibid, 112. 246 DH Johnson, The Root Causes of Sudan’s Civil Wars: Peace or Truce (rev edn, Boydell & Brewer Ltd 2011) 27–29. 247 On the UK’s stance on self-determination in the 1950s and the 1960s, see R McCorquodale, ‘Negotiating Sovereignty: The Practice of the United Kingdom in Regard to the Right of Self-Determination’ (1996) 66 BYIL 283. See also claims by the UK in recent arbitral and judicial proceedings cited above n 15. On the UK’s earlier (reluctant) stance towards self-determination at the San Francisco Conference, see O Spijkers, The United Nations, the Evolution of Global Values and International Law (Intersentia, 2011) 358. On how the Foreign Office tried to reconstruct the UK’s position on this point see above n 205 and accompanying text. 248 Considering whether Italy’s former colonies should become independent or whether any of them should be restored to Italy, J Bennett, Head of the International Relations Department at the Colonial Office wrote, in 1947, a memo advocating against the restoration of any colonies to Italy, arguing that: The United Kingdom itself is displaying extreme sensitivity on this point on at least two questions of current interest: the question of Egyptian sovereignty in the Sudan and the position of the frontier areas of Burma in relation to the new Burmese Constitution. … One of the “Purposes and Principles” in Article 1 of the Charter is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” [emphasis in original]. The United Nations Charter thus approaches very nearly to an international obligation to refrain from acts of territorial compensation irrespective of the wishes of the peoples concerned. Recalling the UK’s position in the case of the Sudan, Bennett further argued with respect to the future of Tripolitania: We shall shortly have to go before the Security Council arguing for the right of the Sudanese to determine their own future and not to have Egyptian sovereignty imposed on them without their consent. We can hardly propose simultaneously in the Council of Foreign Ministers that these very rights should be denied to the Tripolitanians. See BDEEP Ser A Vol 2, Part III, The Labour Government and the End of Empire, Ronald Hyam (ed) (1993) 296, CO 537/2081/8, Note on the implications of restoring to Italy some or all of the ex-Italian colonies: memorandum by J S Bennett. Minutes by AB Cohen and Mr Thomas (11 February 1947). 249 See, eg, TNA CO 936/100, WA Morris to Sir A Dudley, enclosing a Draft Brief on Self-Determination for the UK Delegation to the XIVth Session of the Economic and Social Council (14 June 1952). 250 See, eg, TNA CO 936/100, WA Morris to BOB Gidden, attaching minute by Sir H Poynton (18 February 1952). Poynton, then serving as Deputy Under-Secretary to the Colonial Office, noted: ‘The important thing, to my mind, is that we must avoid recognizing any right of any international body to interfere in the political and constitutional relationship between the UK and its n.s.g. [non-self-governing] territories.’ 251 An example of brushing aside the Sudan precedent when it no longer suited Britain’s strategic interests is the minute by Sir H Poynton, commenting on a Commonwealth Office paper: I do not think we have ever accepted the doctrine of self-determination in respect of the Colonies as an absolute criterion of their future. Is it really our policy that if at any time Cyprus says it wants to go to Greece we are calmly to let it go? We have an interest and a legitimate right to concern ourselves with their future. See BDEEP Ser A Vol 2, Part II, The Labour Government and the End of Empire, Ronald Hyam (ed) (1993) 185, CO 537/4735/21, Minute by Sir H Poynton, commenting on a Commonwealth Relations Office paper (15 Dec 1949). Other officials in the Foreign Office invoked the example of the Sudan to reach opposite conclusions regarding Cyprus. See BDEEP Ser A Vol 2, Part III, 230, FO 371/67081/1089, Minutes by Sir O Sargent and Mr McNeil (FO) (3–4 February 1947): ‘I am afraid I do not agree with the Minister of State’s reason … for not releasing Cyprus. In any case, we must be careful not to limit a people’s right of self-determination because we think it might choose unwisely. This is the line which the Egyptians are taking with regard to the Sudan.’ 252 See Counter-Memorial by the United Kingdom, Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (15 July 2013), §7.17. The UK stood by this position in its Written Statement in the Advisory Proceedings before the International Court of Justice regarding the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (27 February 2018) 141 (§8.71). See also Mauritius v United Kingdom, Hearing on Jurisdiction and Merits in the Chagos Marine Protected Area Arbitration, vol 6 (1 May 2014) 706–708 and Written Statement of the United Kingdom in the Advisory Proceedings before the International Court of Justice regarding the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (27 February 2018) 141 (§8.66): ‘The UN Charter’s purposes and principles includes “the principle of equal rights and self-determination of peoples” as the basis on which “nations” develop friendly relations. The Charter does not further define the content of the principle. The principle was elaborated upon, though not transformed into a “right”, in various resolutions and other instruments.’ 253 TNA FO 731/53321/5311, Minute by Stansgate to Campbell, Sargent, and Howe (6 December 1946). Lord Stansgate was Secretary of State of Air and member of Bevin’s negotiating delegation at the time. 254 On the contrary, the British invoked it when disputing the claims of other colonial powers. See the Fashoda incident, above n 20 and accompanying text. 255 See above n 122 and accompanying text. 256 This historical evidence thus adds more weight to Jörg Fisch’s assumption that the distinction was not considered significant at the time. See Fisch, Mage (transl), The Right of Self-Determination of Peoples: Domestication of an Illusion?, 194, who points out that the French version of the Charter refers both to principle and right: ‘principe de l’égalité des droits des peuples et de leur droit à disposer d’eux-mêmes’. He adds that ‘it is hard to imagine that the discrepancy was not noticed. Because one evidently did not deem it necessary to get rid of the difference, one can assume that it was regarded as insignificant.’ See also J Summers, Peoples and International Law (2nd edn, Martinus Nijhoff 2014) 70–73. For the argument of a gradual transformation of self-determination from a principle to a legal right, see A Cassese, Self-Determination of Peoples, 70. 257 For an early discussion of the arguments relating to the juridical status of self-determination in light of its ‘revolutionary character’, see A Rigo Sureda, The Evolution of the Right of Self-Determination (Sijthoff 1973) 25–27. © The Author(s) 2019. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - ‘The Consciousness of Duty Done’? British Attitudes towards Self-Determination and the Case of the Sudan
JF - British Year book of International Law
DO - 10.1093/bybil/brz002
DA - 2019-03-21
UR - https://www.deepdyve.com/lp/oxford-university-press/the-consciousness-of-duty-done-british-attitudes-towards-self-pg21YBD2xQ
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -