New Imperialism and the Legal Disentanglement of Dichotomies
New Imperialism and the Legal
Disentanglement of Dichotomies
This thesis will, firstly, construct the factual and legal fundaments on which the (research of the) master thesis
rests, by defining New Imperialism and analyzing its factual and legal implications in practice. Secondly, it
analyzes the legal doctrine with regard to colonialism, more specifically, New Imperialism in the framework of
the law of nations in the second half of the nineteenth century and the beginning of the twentieth century. In this
respect, a special focus will be laid on the relation between the colonizing power and the peoples on the newly
discovered, conquered and occupied territories. And, thirdly, it (partly) deconstructs the leading and determining
dichotomy in international law between the civilized and non-civilized world in the second half of the nineteenth
century and the beginning of the twentieth century. Addressing the strengths and weaknesses of several
dichotomies, like naturalism v. positivism, civilization v. non-civilization and territorial sovereignty v. private
property of land, will be the central issue throughout the thesis.
Master thesis prepared for the
„Research Master in Law‟
Supervisor: Prof. Dr. R.C.H. Lesaffer
Written by Mieke van der Linden
Education: Research Master in Law (two-years-variant)
ANR: 223364
E-mail: [email protected]
Date: 28th of June, 2010
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New Imperialism and the Legal Disentanglement of Dichotomies
Preface
The underlying Master Thesis forms part of a broader PhD research project, which is still in a
preliminary stage and bears the following title: Dominium and Imperium in the Treaty Practice of the
Age of New Imperialism in the Heart of the African Continent (1870-1914): State Responsibility for
Grave Historical Injustices. This Thesis is de first Chapter of the PhD Thesis and aims to analyze and
construct the factual and theoretical framework of the broader research project.
Over recent decades, the moral responsibility for the past actions of the European colonial
powers in relation to their former colonies has been subject to a lively debate. The PhD project
addresses the question of the State responsibility of former colonial powers under international law.
Such a legal responsibility, or liability, would presuppose the commitment of wrongful actions against
the international law that was applicable at the time of colonization. In the „Scramble for Africa‟
during the Age of New Imperialism (1870-1914), European States and non-State actors mainly used
treaties and contracts to acquire sovereignty or private property – imperium and dominium – over
indigenous lands and people. The research project raises the question whether Europeans did or did
not systematically breach these treaties and contracts in the context of the acquisition of territory and
the expansion of empire, mainly through extending sovereignty rights to the level of private property
and the other way round. If this is the case, then this offers a legal basis to invoke the State
responsibility of the former colonizing powers in contemporary international law. This question will
be considered through three case studies involving three leading European powers: the colonization of
Nigeria by Britain, of Equatorial Africa by France and of Cameroon by Germany.
In the late 80s and 90s of the twentieth century, the „Durban debate‟ on (State) responsibility
for grave historical injustices emerged. It was just then that it was recognized that colonialism caused
a lot of distress to native populations and that it had to be prevented in the future. Additionally, regret
was expressed for the lasting social and economic inequalities in many parts of the world nowadays,
as a consequence of colonization. No word was dedicated to legal responsibility, or reparations. The
discussion still persists with many unanswered questions. This research will touch upon these
questions, will contribute to the „Durban debate‟ and will even (try to) solve the impasse on
colonization and responsibility. The research project will examine and analyze the treaty-making
practices between European colonial powers and African rulers to provide legal grounds (breach of
contract) to held former colonial powers responsible for violation of the law during the colonization of
Africa. Consequently, the main purpose of the research project is to proof that colonization in itself is
an illegal act.
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New Imperialism and the Legal Disentanglement of Dichotomies
Further, an understanding and awareness of imperialism is insurmountable in order to
overcome and prevent future ethnic and border conflicts in relation to title to territory. Imperialism, in
the sense of a civilizing mission, imposes social, economic, legal and cultural ideas and customs on
„uncivilized‟. Therefore, imperialism is not an issue of colonization, but is an ongoing movement of
international law with many appearances. The underlying research in regard to colonialism is meant to
gain understanding of imperialism in general, in order to anticipate on recent and future trends of
imperialism. Additionally, it is especially important to analyse treaty negotiations and conclusions in
the Age of New Imperialism and to enquire a deep understanding of the positions and stances of both
African and European parties. In this, the emphasis has to lie on the mutuality of attitude
understanding and equality. Up till now, research was focused on how members of the European
international system or order regarded the subjects of the non-European world. However, the question
of how the non-European peoples perceived, understood and explained Europeans at the end of the
nineteenth century has to be posed. This research has to serve the enhancement of the effectiveness of
treaty negotiations and conclusions between Western and African parties or States nowadays by
considering „the African perspective‟. It has to be avoided that the same mistakes will be made as were
made at the end of the nineteenth century.
Mieke van der Linden
Tilburg, 28 June 2010
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New Imperialism and the Legal Disentanglement of Dichotomies
Table of Contents
Section
Subject
Page Number
Introduction
5
1.
Doctrinal perspectives on international law and New Imperialism
10
1.1
International law: civilized versus uncivilized
10
1.2
International law in the nineteenth century: naturalism versus
11
positivism?
1.3
European civilization versus non-European non-civilization
16
2.
Title to territory: International law in relation to imperium and
22
dominium
2.1
Acquisition of territory
24
2.2
Cession and treaty making practice
34
2.3
Grotius‟ perspective on dominium and imperium
39
2.4
Imperium, dominium and New Imperialism connected
42
3.
Conclusion and remarks for further research
47
Bibliography
54
Appendix
60
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New Imperialism and the Legal Disentanglement of Dichotomies
Introduction
‘There were dreams of El Dorado, of diamond mines and goldfields criss-crossing the Sahara. In Europe
these were the drab years of the Great Depression and mounting stocks of unsold Manchester cotton,
Lyons silk and Hamburg gin. Perhaps Africa was the answer to the merchants’ prayers. There might be
new markets out there in this African garden of Eden, and tropical groves where the golden fruit could be
plucked by willing brown hands.’1 (Thomas Pakenham)
The world order of the nineteenth century offers a clear break with that of the foregoing centuries and
is characterized by a radical and absolute dichotomy. A positivistic perspective on the international
(legal) order takes over from the naturalistic view, which has been the mainstream perspective for
several centuries. Moreover, this positivistic world order institutes a dichotomy, which can be
described as European v. non- European; civilized v. non-civilized; center v. periphery; within the
Family of Nations v. outside the Family of Nations; unity v. diversity; toleration mission v. civilization
mission; reason v. nature; etc. It is in this divided world where colonialism revives resulting in the Age
of New Imperialism (1870-1914). New Imperialism, also called the second European colonization
wave, followed the first wave of the fifteenth to the early nineteenth centuries. Africa was one of the
main battlefields of this second European colonization wave. In the „Scramble for Africa‟2, at the end
of the nineteenth century and the beginning of the twentieth century, several European powers collided
in their ambitions to seize territory. The main actors in this competition were Great Britain, France and
Germany, but also Belgium, Portugal, Italy and to a far lesser extent Spain were involved. The motives
behind this colonization were multiple; they involved economic exploitation, protection of European
national interests and imposing „superior‟ Western values. During the Age of New Imperialism,
European powers added almost 9,000,000 square miles of African land, approximately 20 percent of
the whole land mass of the world, to their overseas colonial empires.3 After the Conference of Berlin
(1884-1885), the „Scramble for Africa‟ really came up to speed. The factual and practical events and
consequences, which the partition of Africa implied, were enormous. Border lines were drawn,
territory was divided and whole peoples were disturbed, split up and assimilated to European
civilization. Each European power had its own means and strategies to realize its targets and objects
on the territory of Africa. Nevertheless, in many cases, the arrival of the Europeans did not start off
with conquest and subordination, but with all kinds of interactions with the indigenous people(s) and
1
T. Pakenham, The Scramble for Africa, London: Abacus, 2009, p. xxiv
The „Scramble for Africa‟ are the popular terms to describe the partition of Africa. Thomas Pakenham was the first author
using these words in his book The Scramble for Africa (1991), T. Pakenham, The Scramble for Africa, London: Abacus, 2009.
3
For a chronological overview of colonization between 1870 and 1912, as composed by Thomas Pakenham in The Scramble
for Africa, London: Abacus, 2009, see Appendix to this Master Thesis, p. 60. See also P.K. O‟Brien, Atlas of World History,
Oxford: Oxford University Press, 1999.
2
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New Imperialism and the Legal Disentanglement of Dichotomies
their rulers, which were based on equality or even on a subordinate position of the Europeans.4 What
in the end distinguishes New Imperialism from the former period of European colonisation is the Geist
of nationalism resulting in the „Scramble for Africa‟, in which the whole continent was brought under
the rule of the European colonizing powers; territorial occupation expanded from settlements and trade
posts on the coast to the hinterland, the interior or the heart of Africa. From an international legal
perspective, this raises the question of the mode(s) of acquisition of and the legal entitlement to
territory, being the central issue of this thesis.
Between 1880 and 1914 the whole of Africa was partitioned between rival European powers,
leaving only Liberia and Ethiopia independent of foreign rule. The speed of the process was
unprecedented, when considering that most of the African landmass and its peoples were parcelled out
in a mere ten years after 1880. Although the „Scramble‟ for titles to territory was already in full
progress before the Conference of Berlin (1884-1885), the Conference is considered to be the official
point of departure of the new approach in regard to the race for African territory. At this conference,
the political and geographical map was redrawn by the European colonial powers. Otto von Bismarck,
Chancellor of Germany from 1870 until 1890, opened the conference, with fourteen participating
States5, on the 15 November 1884. In first instance, the conference was not convened to discuss claims
on the sovereignty of the African continent and/or divide it. The primary purpose6 of the Conference
was merely to open up Africa for free trade and civilization, through European co-operation and
harmony7 and to set up rules for the new territories along the African coast, and thus, not to deliberate
on existing agreements or to discuss issues of African interior. 8 Nevertheless, the closing Act
determined that who would occupy a new territory on the coast or would establish a protectorate, had
to give notice to the other contracting parties, and had to make sure that the new territory or
protectorate was under „effective occupation, authority, control, or rule‟.9 Although this closing act,
which was negotiated during the plenary sessions, seemed not very exciting, many dialogues took
place beyond the scene of the conference room, in the so-called corridors, which strengthened the
tensions with regard to the urge to gain territory. Accordingly, when the Conference of Berlin
4
J. Fisch, „Law as a Means and as an End: Some Remarks on the Function of European and non-European Law in the
Process of European Expansion‟, in W.J. Mommsen and J.A. De Moor (eds.), European Expansion and Law, New York:
Berg Publishers, 1992, p. 20. See also R.C.H. Lesaffer, 'Argument from Roman Law in Current International Law:
Occupation and Acquisitive Prescription', European Journal of International Law, 16 (2005), pp. 25-58.
5
The participating States were Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Italy, the Netherlands,
Norway, Portugal, Russia, Spain and Sweden.
6
The Conference had three official claims: the organization of freedom of navigation in the Congo and Niger rivers, the
guarantee of freedom of trade in the Congo basin and mouth, and agreeing over the rules concerning the acquisition of new
territory. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Hersch
Lauterpacht Memorial Lectures), Cambridge: Cambridge University Press, 2002, p. 123. See also S.E. Crowe, The Berlin
West African Conference 1884-1885, London: Longmans, 1942.
7
H.L. Wesseling, Verdeel en Heers. De Deling van Afrika, 1880-1914, Amsterdam: Uitgeverij Bert Bakker, 2007, p. 152.
For an English version, see H.L. Wesseling, The European Colonial Empires 1815-1919, Harlow: Pearson Education Limited,
2004.
8
H.L. Wesseling, Verdeel en Heers. De Deling van Afrika, 1880-1914, Amsterdam: Uitgeverij Bert Bakker, 2007, p. 152.
9
Ibid.
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New Imperialism and the Legal Disentanglement of Dichotomies
assembled, the „Scramble‟ for titles was already in full progress, though, it had not yet reached the
heart of Africa. The closure of the conference was on 26 February 1885, which resulted in the Berlin
Act, with the articles 34 and 3510 as central provisions. After the Conference of Berlin the race for
African territory became a fact.
Imperialism concerns the relation between European powers and discovered and subjected
land and peoples. Thomas Pakenham, in his famous The Scramble for Africa (1991), describes
imperialism as a kind of „race patriotism‟.11 In the words of Benjamin Cohen, imperialism is „any
relationship of effective domination or control, political or economic, direct or indirect, of one nation
over another.‟12 This relation is often referred to as the center versus periphery dualism. The colonial
adventure took care of encounters between native individuals and tribes on the one side, and
representatives of European States, private individuals, missionaries and trade companies on the other
side. In respect to the motives of New Imperialism, several can be enumerated, namely economic,
political, military, and cultural imperialism. 13 First, technological developments, fuelled by the
Industrial Revolution, made the exploration of unknown places possible. More and more territories
were discovered, explored and occupied to enlarge the market for trade and exploitation. The
economic environment universalized through the search for raw materials and other resources, and the
broadening of the market of the growing European industry. Consequently, exploitation of the African
continent and its resources became the purpose of the European adventurers to support (free) trade,
industry and foreign investment, which would be an advantageous position from the European
perspective, in the emergence of capitalism. Second, political developments caused instable
international relations. The unification of Germany and Italy in 1871 upset the balance of power in the
form of the Concert of Europe, wherein the five European Powers were aligned, and soured relations
among the great powers of the old continent. As a consequence, the call for enhancement of the power
of the European States by the extension of territory became stronger. Strategically seen, the protection
of European interests, and thus, nationalism became apparent. Western European States aimed to
protect their sovereignty and values by imposing them on newly discovered territory, i.e. the African
continent. The political atmosphere during the second half of the nineteenth century urged to cross
boarders and occupy new territories. In other words, intra-European nationalist rivalry emphasised the
10
Article 34 states that „any power which henceforth takes possession of a tract of land on the coasts of the African Continent
outside its present possessions, shall acquire them, as well as the Power which assumes a Protectorate there, shall accompany
the respective act with a notification thereof addressed to the other Signatory Powers of the present Act, in order to enable
them, if need be, to make good any claims of their own.‟ Further, article 35 states that „the Signatory Powers of the present
Act recognize the obligation to ensure the establishment of authority in the regions occupied by them on the coasts of the
African Continent sufficient to protect existing rights and, as the case may be, freedom of trade and of transit under the
conditions agreed upon.‟
11
T. Pakenham, The Scramble for Africa, London: Abacus, 2009, p. xxiv.
12
B. Cohen, The Question of Imperialism: The Political Economy of Dominance and Dependence, London: Macmillan, 1974,
p. 16.
13
J. Galtung, „A Structural Theory of Imperialism‟, Journal of Peace Research 8/2 (1971), pp. 81-117. Sanderson discarded
several general theories on the partition of Africa, see G.N. Sanderson in „The European Partition of Africa: Coincidence or
Conjuncture?‟, in: E.F. Penrose (ed.), European Imperialism and the Partition of Africa, London: Frank Cass, 1975, pp. 1-54.
7
New Imperialism and the Legal Disentanglement of Dichotomies
prestige associated with possession of foreign territory and the ambitions of individual statesmen and
diplomats. Third, military innovation and professionalization also played an important role in the
effectuation of territorial occupation, especially the development of automatic weapons. And the
strategic designs of military and naval planners sought to preserve lines of communication, for
example, the Suez Canal (1869) as the route to India. Fourth, ideological motives, as embedded in
culture, were invoked in the sense that the superior European range of thought, also called the „white
man‟s burden‟, had to be spread around and barbarous parts of the world and peoples had to be
civilized according to the Christian tradition of Europe.
Hence, the Europeans were on a civilizing mission in a barbaric part of the world. This thesis
will focus on the following question: What is the theoretical international legal framework of New
Imperialism (1870-1914)? The main aims of this thesis are, firstly, to construct the factual and legal
fundaments on which the (research of the) master thesis rests, by describing New Imperialism and
analyzing its factual and legal implications in practice. Secondly, to analyze the legal doctrine with
regard to colonialism, more specifically, New Imperialism in the framework of international law in the
second half of the nineteenth century and the beginning of the twentieth century. In this respect, a
special focus will be laid on the relation between the colonizing power and the peoples on the newly
discovered, conquered and occupied territories. And, thirdly, to (partly) deconstruct the leading and
determining dichotomy in international law between the civilized and non-civilized world in the
second half of the nineteenth century and the beginning of the twentieth century. Addressing the
strengths and weaknesses of several dichotomies, like naturalism v. positivism, civilization v. noncivilization and territorial sovereignty v. private property of land, will be the leading thread throughout
the thesis.
The theory and thoughts of Dutch humanist Hugo Grotius (1583-1645) will lead the reader
through the underlying text. Chapter 1 will deal with the questions regarding the (role and influence
of) legal scholars who were concerned with international law, in particular with New Imperialism and
in which way they contributed to the theoretical international legal framework of New Imperialism.
More specifically, it will touch upon the perspectives, interpretations and explanations of the legal
scholars of the nineteenth century, with regard to New Imperialism in the context of international law.
Central issue will be the discussion between naturalism and positivism on imperialism. This enquiry
will be set in contrast to the foregoing period of the seventeenth and eighteenth centuries. Further,
territorial sovereignty and private property of land – imperium and dominium – and their relation will
be addressed against the background of the modes of acquisition and the legal entitlement to territory
(Chapter 2). In Chapter 3, some concluding remarks will be offered. The last part of the thesis will
summarize and evaluate the doctrinal efforts of the nineteenth and the beginning of the twentieth
century with regard to New Imperialism, imperium and dominium in a divided international legal order
of civilized and non-civilized parts. As will be seen, many questions still remain unanswered,
8
New Imperialism and the Legal Disentanglement of Dichotomies
especially with regard to treaty practices between European States and African entities, inciting to
further research.
9
New Imperialism and the Legal Disentanglement of Dichotomies
1. Doctrinal perspectives: international
law and New Imperialism
As mentioned in the introduction, the aim of this first Chapter is to analyze the legal doctrine with
regard to colonialism, in particular New Imperialism, in the framework of international law in the
second half of the nineteenth century and the beginning of the twentieth century. Central questions are:
Which (legal) scholars were concerned with the law of nations in relation to New Imperialism? And in
which way and to what extend did they contribute to the theoretical international legal framework of
New Imperialism? Two Chapters are dedicated to answering these questions: First, in Chapter 1, a
description is provided of international law from 1800 until the First World War with regard to New
Imperialism, which is traditionally characterized by the influences of naturalism and positivism. In this
respect, the division of the European civilized world versus the non-European uncivilized world, as the
central dichotomy of the concerned age, will be discussed. Legal perspectives, theories and
implications of the law of nations and, later, international law, as they were put forward by
contemporary scholars, will be analyzed in the context of New Imperialism. Second, in Chapter 2, the
legal doctrines with regard to title to territory will be dealt with. The following themes will be
addressed: the subjects who could acquire territory, the modes of acquisition and legal entitlements to
certain territory. The concerned Chapter will centralize the dichotomy of public territorial sovereignty
and private property rights to land – imperium and dominium.
1.1 International law: civilized versus uncivilized
International law, more specific, public international law traditionally refers to the domestic, regional,
and even, in some cases, universal laws governing the behaviour of independent or sovereign nation
States in relation to each other. It is supposed that it applies to all States regardless of their specific
cultures, religions and political organization.14 These laws concern, for instance, treaty law, the law of
the sea, criminal law, humanitarian law and environmental law. Besides States, present international
law also regulates other entities or legal persons which are subject to international law, such as
international or intergovernmental organisations, non-governmental organisations, multinational
corporations, and even individuals. The concept of „international law‟ is a neologism and is invented
by Bentham in the late eighteenth century. Since then, it has been used, together with terms as „law of
nations‟, „Völkerrecht‟ and „droit des gens‟, to designate the law valid in international society. It was
14
A. Anghie, „Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law‟, Harvard
International Law Journal 40/1 (1999), p. 1. See also A. Anghie, Imperialism, Sovereignty and the Making of International
Law, New York: Cambridge University Press, 2005. Many works appeared in the field of the general articulations of
international law, e.g., A. Cassese, International Law (2nd edition), New York: Oxford University Press, 2005; and M.N.
Shaw, International Law, Cambridge: Cambridge University Press, 2008.
10
New Imperialism and the Legal Disentanglement of Dichotomies
not until the beginning of the twentieth century that a set of theories and rules were established
applicable to all States. The evolution of international law as a universal applicable body of law was to
great extent a consequence of the imperial expansion during the nineteenth century. European
standards of law were imposed on the non-European peoples, which were conquered for mainly
economic and political advantages and benefits. Almost all the territories of Africa, Asia and the
Pacific were ruled by the major European powers, „resulting in the assimilation of all these nonEuropean peoples into a system of law that was fundamentally European in that derived from
European thought and experience.‟15 This being said, a fundamental question with regard to the origin
of international law or the law of nations in relation to New Imperialism arises: In which way is the
law of nations or, since the nineteenth century, international law related to New Imperialism, from a
doctrinal perspective? This question will be addressed in the following Sections, divided into two
headings: International law in the nineteenth century: naturalism versus positivism? (1.2) and
European civilization versus non-European non-civilization (1.3).
1.2 International law in the nineteenth century: naturalism versus positivism?16
‘The ordinary jus gentium is only a particular law, applicable to a distinct set or family of nations,
varying at different times with the change of religion, manner, government, and other institutions, among
every class of nations.’17 (Henry Wheaton)
After the birth of the nation-State structure in the succeeding years of the Peace Treaties of Westphalia
(1648),18 States monopolized the creation and enforcement of the law of nations. From the seventeenth
to the nineteenth century, this led to the establishment of doctrines based on voluntarism and
consensualism. In the light of the doctrine, no rules of the law of nations could be imposed on States
without their consent. In the aftermath of the Westphalian Peace Treaties (1648), the evolution of the
law of nations got into a „great leap forward‟ by the treatises of the Dutch humanist Hugo Grotius
15
A. Anghie, „Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law‟, Harvard
International Law Journal 40/1 (1999), p. 2.
16
See for a general overview of the law of nations in the nineteenth century A. Nussbaum, A Concise History of the Law of
Nations (1st edition), New York: Macmillan, 1947. See also M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and
Fall of International Law 1870-1960 (Hersch Lauterpacht Memorial Lectures), Cambridge: Cambridge University Press,
2002; M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument. Reissue with New Epilogue,
Cambridge: Cambridge University Press, 2005; and D. Kennedy, „International Law and the Nineteenth Century: History of
an Illusion‟, Nordic Journal of International Law 65 (1996), pp. 385-420.
17
H. Wheaton, Elements of International Law. With a Sketch of the History of the Science (2 vols.), London: Fellowes, 1836,
pp. 50-51.
18
On the Peace Treaties of Westphalia, signed in Osnabrück and Münster, see R.C.H. Lesaffer, „Peace Treaties from Lodi to
Westphalia‟, in: R.C.H. Lesaffer (ed.), Peace Treaties and International Law in European History: From the Middle Ages to
World War One, Cambridge: Cambridge University Press, 2004, pp. 9-44; H. Duchhardt, „Peace Treaties from Westphalia to
the Revolutionary Era‟, in: R.C.H. Lesaffer (ed.), Peace Treaties and International Law in European History: From the
Middle Ages to World War One, Cambridge: Cambridge University Press, 2004, pp. 45-58; R.C.H. Lesaffer, „The
Westphalian Peace Treaties and the Development of the Tradition of Great European Peace Settlements prior to 1648‟,
Grotiana 18 (1997), pp. 71-95; H. Wheaton, History of the Law of Nations in Europe and America from the Earliest Times to
the Treaty of Washington, New York, 1845; S. Beaulac, „The Westphalian Legal Orthodoxy – Myth or Reality?‟, Journal of
the History of International Law 2 (2000), pp. 148-177;S. Beaulac, The Power of Language in the Making of International
Law, Leiden: Martinus Nijhoff Publishers, 2004; and D. Croxton, „The Peace of Westphalia of 1648 and the Origins of
Sovereignty‟, International History Review 21(1999), pp. 569-591.
11
New Imperialism and the Legal Disentanglement of Dichotomies
(1583-1645).19 His De jure praedae commentarius (1604), Mare liberum (1609) and De jure belli ac
pacis libri tres (1625)20, of which the last one was the most influential, had a great impact on the law
of nations. It is impossible to extensively discuss all elements of Grotius‟ contribution, to the law of
nations. That is why the following analysis of the work of Grotius is limited to his thoughts and
theories on natural law and its relation to the law of nations, in particular in the context of the
encounter of unknown territories and peoples, and colonization.
Grotius made the application of natural law explicit. In this respect, he confirmed the theories
of his predecessors21, that natural law consisted of transcendental principles articulated through the use
of reason. Natural law „was strongly identified with the principles of justice and the notion that all
human activity was bound by an overarching morality,‟22 and, therefore, sovereign States were bound
by natural law. Grotius, however, distinguished in his De jure belli ac pacis libri tres (1625) the
positive law of nations (ius gentium) and natural law (ius naturale). He aligned individuals living in a
State and States in international society. Always present natural law applied to men and States and
consisted of rights and duties in a shared responsibility for the common good. Grotius distinguished
two kinds of law of nations: ius gentium naturale, derived from the law of nature, and ius gentium
voluntarium, which was created by man and based on man‟s will.23 The latter variant of the law of
19
On Grotius, see H. Bull, B. Kingsbury and A. Roberts (eds.), Grotius and International Relations, Oxford: Clarendon Press,
1992.
20
H. Grotius, De jure praedae commentarius (transl. G.L. Williams and W.H. Zeydel), Oxford: Clarendon Press, 1950 (1604);
H. Grotius, Mare liberum (transl. The Free Sea, by R. Hakluyt, W. Welwod and D. Armitage), Indianapolis: Liberty Fund,
2004 (1609); and H. Grotius, De Iure Belli as Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925 (1625). For
another English translation, see R. Tuck and J. Barbeyrac, The Rights of War and Peace (De jure belli ac pacis libri tres, orig.
1625 written by Hugo Grotius), Indianapolis: Liberty Fund, 2005.
21
Like the Spanish neo-scholastic Francisco de Vitoria (1480-1546), the Spanish neo-scholastic Francisco Suárez (15481617), the Spanish jurist Baltasar de Ayala (1548-1584) and the Spanish jurist Alberico Gentili (1552-1608). Vitoria
undertook a systematic inquiry into whether the war of the Spaniards against the Indian peoples was justified. Hence,
colonialism was the central theme of his writings. Vitoria opposed the traditional framework of the dominance of the
Christian world over the heathens. Vitoria characterized the Indians as humans possessing reason, instead of being slaves,
sinners, heathens, barbarians, inferiors, minors or animals. He argued that the Indians had their own sovereigns and that,
more importantly, their public and private rights had to be respected. This argumentation of Vitoria is obviously based on the
premise of natural law that there are certain rights that are inherent to being a human and on the equality between human
beings. He further asserted that the Indians owned the land in the Americas, and that discovery alone did not constitute a
proper legal title to territory. The reasoning of Vitoria was determined by the general idea that trade among individuals of
various nations must be permitted and initiated the idea of freedom of commerce and navigation. He introduced a universal
natural law, ius gentium, whose rules may be ascertained by the use of reason. Under this natural law, the Spanish have a
right to travel to and in the land of the Indians and, under the conditions that they do not harm the Indians, the natives may
not prevent the Spanish. Here the first signs of a universal international law appear, seemingly based on equality and
reciprocity between the Spanish and the Indians. However, Vitoria asserts that any Indian attempt to resist Spanish
penetration would be an act of aggression which would justify Spanish retaliation. Each encounter between the Spanish and
the Indians therefore entitles the Spanish to defend themselves against Indian aggression and, in so doing, expand the Spanish
territory. In addition, Vitoria even argues that the Indians need Spanish sovereignty, in his characterization of Indians as
„infants‟. Although there is a universal aspect with regard to Indians in being human, the Spanish culture, identity and laws
are superior and, thus, have to be projected as universal on the Indians. This externalization of Spanish norms is regarded by
Vitoria as ius gentium; F. de Vitoria, De Indis et de iure Belli Relectiones (transl. in The Classics of International Law),
Washington: The Carnegie Institute, 1917 (1557). See also A. Anghie, „Francisco De Vitoria and the Colonial Origins of
International Law‟, Social Legal Studies 5 (1996), p. 321-336.
22
A. Anghie, „Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law‟, Harvard
International Law Journal 40/1 (1999), p. 11.
23
R.C.H. Lesaffer, „The Classical Law of Nations (15th – 18th centuries)‟, 2010, available on: <
http://ssrn.com/abstract=1594444 >, p. 24.
12
New Imperialism and the Legal Disentanglement of Dichotomies
nations was based on the consent and consensus between nations and founded on the higher
contractual principle of pacta sunt servanda; the binding force of promises rooted in natural law.
Thus, Grotius‟ concept of the law of nations has its origin in natural law, that what all sovereign States
have in common, implicating responsibility to the other, the whole or the society. It is a balanced
concept asserting duties of self-preservation and duties towards others. Natural law, as given by
nature, has to be obeyed on the basis of morality and consciousness. Positive law, on the other hand, is
man made law and has to be obeyed, because it is based on consent. Positive international law consists
of the practice of treaties and custom. Moreover, Grotius acknowledged that „the general consent of all
the nations would never be given to a rule that contradicted the rationality of the law of nature.‟24
Positive law could not contradict natural law.
As can be concluded in the context of the evolution of the law of nations, Grotius enhances no
strict dualistic theory between natural and positive law. Although the law of nations is positive (ius
gentium), it is rooted in natural law. Furthermore, the principles of universality, equality and
reciprocity between States are central in the practice of the man made law of nations, based on the
consent by treaties and custom. Additionally, Grotius introduced many concepts and rules from
Roman (private) law on property, contract and tort law, advancing and making the dichotomy between
private and public law increasingly apparent. This dichotomy will be extensively addressed in Chapter
2, discussing the legal doctrines with regard to title to territory. Chapter 2 will centralize the
dichotomy of public territorial sovereignty and private property rights to land – imperium and
dominium. However, it has to be mentioned that Grotius, like Vitoria, rejected the idea of discovery as
a legal title of ownership. Grotius articulated his theories on the law of nations from a secular position:
while he was inspired by Christian ideals, his international law was secular to all intents and purposes.
His secular position can also be traced in his theory on tolerance: Nussbaum 25 marks that Grotius
recognized a special relationship between Christian powers, but he was also the first writer not to
suggest „discrimination against Saracens and other infidels‟; he even argued that „the conclusion of
treaties with them as unobjectionable.‟ Here Grotius aligns Christian and non-Christian nations on the
basis of equality and mutual respect. Thus, his perception of the law of nations implies to be secular
and indiscriminate towards Christian and non-Christian nations. At the end, Grotius confirmed the
theory of Francisco Vitoria (1480-1546) to a great extent. The only difference is that, instead of a right
of conquest based on the propagation of the Christian belief, as Vitoria argued, Grotius described
conquest as being aimed at enforcing natural „civilized‟ laws with regard to „savages‟. The theory of
Grotius had great influence on the law of nations and his successors26.
24
Ibid.
A. Nussbaum, A Concise History of the Law of Nations (1st edition), New York: Macmillan, 1947, p. 110.
26
Especially the German naturalist Samuel Pufendorf (1632-1694), the German naturalist Christian Wolff (1676-1756) and
the Swiss diplomat Emmerich de Vattel (1714-1767).
25
13
New Imperialism and the Legal Disentanglement of Dichotomies
During the nineteenth century international law became increasingly discriminate. Positivism
became the prevailing jurisprudence since the nineteenth century and is still the dominant mode of
theorizing international law. Naturalism had been the leading theory from the establishment of the law
of nations, beginning in the sixteenth century, to roughly the end of the eighteenth century. It
stipulated that the law of nations could be found in „nature‟, that it was to be ascertained trough
reason, and that it was binding upon all (European) States. Positivism supposes that a State can only
be bound by rules upon which it has consented and is closely linked to pragmatism, which is
associated with the emergence of institutions in the international arena. The sovereign State was the
foundation of the whole legal system, according to positivists, and their aim was to build a systematic
framework of international law based on this premise.27 Positivism asserts that law is the creation of
sovereign will and that law is administered and enforced by sovereigns as the highest authorities. In
the sense of being the highest authority, the sovereign could only be bound to that upon which it had
consented. For positivists the rules of international law were not to be found in the general ideas of
morality and justice, but it was discovered by a study of the behaviour of States and the institutions
and laws which States created.28 Law is, therefore, explicitly separated from morality. John Austin
(1790-1859), one of the main contributors to positivist doctrine, argued that „laws properly so called
are a species of commands.‟29 However, „being a command, every law properly so called flows from a
determinate source.‟30 According to Austin, the international order lacked a sovereign. And given his
premise that all authority derived from a determinate source and the absence of a sovereign in
international relations, Austin, consequently, stipulated that „the law obtaining between nations is not
positive law: for every positive law is set by a given sovereign to a person or person in a state of
subjection to its author.‟ 31 Thus, international law itself was nothing more than morality. This
reasoning of Austin led to responses which presented „a modified and more specific version of what
law and positivism meant‟ to international legal scholars and practitioners, „who set about establishing
why international law was law despite its failure to meet Austinian criteria.‟32 This was done by the
contemporary lawyers like Henry Wheaton (1785-1848)33, Johann Bluntschli (1808-1881)34, James
27
A. Anghie, „Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law‟, Harvard
International Law Journal 40/1 (1999), p. 13.
28
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 43. In this light, Alexandrowicz asks „whether the positivist European reality was reconcilable with the idea of
universalism of the law of nations which drew its legal source from the declining concept of natural law but had a reality of
its own‟. He answers this question by arguing that the „family of nations could not have been reduced from universality to a
regional framework by a change of doctrine [from naturalism to positivism]. Admission of new States was and is possible
only in relation to entities which came newly into being. It cannot comprise those of them which existed long before and
drew their legal status from a law of civilized nations in mutual intercourse whose universality had been an undisputable
reality‟. C.H. Alexandrowicz, „Doctrinal aspects of the universality of the law of nations‟, British Yearbook of International
Law 37 (1961), p. 506 and 515.
29
J. Austin, The Province of Jurisprudence Determined, New York: Noonday Press, 1954, p, 133.
30
Ibid.
31
Ibid.
32
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 45.
33
H. Wheaton, Elements of International Law, Boston: Little, Brown & Co., 1866.
14
New Imperialism and the Legal Disentanglement of Dichotomies
Lorimer (1818-1890) 35 , Henry S. Maine (1822-1888) 36 , John Westlake (1828-1913) 37 , Thomas
Lawrence (1849-1920)38, Lassa Oppenheim (1858-1919)39 and Thomas Walker (1862-1935)40. The
answer of Westlake to Austin was that the law, more particular international law, was not imposed by
a higher authority but agreed upon by the concerned entities. „Law exists where there is a regularity in
dealings, when the members of the society regard themselves as bound by the rules, and where
sanctions of some sort would follow a breach.‟41 Westlake even argued that sovereignty was a pure
European notion; it was unthinkable to refer to sovereignty with regard to non-European entities. In
this respect, the notion of a „community‟, „society‟, or a „family‟ becomes fundamental to the
definition of the law, as argued by Anghie.42 The modern international system is composed of States,
more specifically European States, and in their relations with one another, they constitute a „society‟.
Thus, instead of sovereignty, society becomes the central concept in international law. Anghie asserts
that
„Despite the positivist claims that the sovereign was the exclusive basis for the international system, it
was only if society was introduced into the system that positivists could approximate the idea of “law” to
which they urged adherence.‟43
In other words, being a member of the international society formed a conditio sine qua non for being
sovereign. Only those States that are accepted into the society and that have agreed upon principles
which regulate their behaviour belong to this society. As a consequence, the concept of society
„enabled the formulation and elaboration of the various cultural distinctions that were crucial to the
constitution of sovereignty doctrine.‟ 44 Here the next dichotomy appears, namely that of civilized
versus uncivilized. The following Section will address this dichotomy.
34
J.C. Bluntschli, Das Moderne Völkerrecht der Civilisirten Staten, Nördlingen, 1868.
J. Lorimer, „La doctrine de la reconnaissance. Fondement du droit international‟, Revue de droit international et de
législation comparée XVI (1884), pp. 333-359; and J. Lorimer, Institutes of International Law. A Treatise of the Jural
Relations of Separate Political Communities, Edinburgh and London: Blackwood, 1883.
36
H.S. Maine, Ancient Law, London: John Murray, 1861; and H.S. Maine, International Law: The Whewell Lectures of 1887
(2nd edition), London: John Murray, 1915.
37
J. Westlake, Chapters on the Principles of International Law, Cambridge University Press, 1894.
38
T.J. Lawrence, The Principles of International Law, London: Macmillan, 1895.
39
L.F.L. Oppenheim, International Law (2nd edition), London: Longmans, 1912.
40
T.A. Walker, A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia, Cambridge: Cambridge
University Press, 1899.
41
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 48.
42
Ibid.
43
Ibid.
44
Ibid.
35
15
New Imperialism and the Legal Disentanglement of Dichotomies
1.2 European civilization45 versus non-European non-civilization
‘Civilization is not a veneer; it must penetrate the very heart and core of societies of men. Its true signs
are thought for the poor and suffering, chivalrous regard and respect for woman, the frank recognition of
human brotherhood irrespective of race or colour or nation or religion, the narrowing of the domain of
mere force as a governing factor in the world, the love of ordered freedom, abhorrence of what is mean
and cruel and vile, ceaseless devotion to the claims of justice.’ 46 (Lord Russell of Killowen)
A central feature of positivism in the nineteenth century was its distinction of the civilized and
uncivilized world. Although naturalists of the foregoing centuries distinguished between Christian and
non-Christian nations, they considered that a single and universal law was applicable governing a
naturally constituted order of nations. Civilization, according to German positivist Franz von Liszt,
now took the place of natural law as the universal standard of evaluation and called for European
expansion with the force of apparent natural necessity. 47 Wheaton, for example, argued that
international arena could exclusively be entered by civilized societies. 48 He states that „the law of
nations is that which is observed, in accordance with the light of reason, between nations, if not among
all, at least certainly among the greater part, and those the most civilized.‟49 Hence, positivist took a
position of exclusion of uncivilized from the realm of international law. The dichotomy between the
civilized and uncivilized is characterized by oppositions like European versus non-European, Christian
versus non-Christian, sovereign versus non-sovereign, centre versus periphery, superior or advanced
versus inferior or backward, and „we‟ versus „them‟. 50 Consequently, two patterns of international
order emerged, namely one within Europe promoting toleration and one beyond Europe promoting
civilization. This conceptualization is well described by Edward Keene:
45
John Stuart Mill said (as summarized by Edward Keene) that civilization implied „a dense population … dwelling in fixed
habitations, and largely collected together in towns and villages‟; a highly developed level of agriculture, commerce and
manufacturing industry; „human beings acting together for common purposes in large bodies, and enjoying the pleasures of
social intercourse‟; and a state of affairs „where the arrangements of society, for protecting the persons and property of its
members, are sufficiently perfect to maintain peace among them‟. J.S. Mill, „Civilization‟, in: J.S. Mill, Collected Works,
Volume 18: Essays on Politics and Society, London: Routledge, 1977, p. 120. Edward Keene summarized Mill‟s definition in
his E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 112. See for an elaboration on the origins of the dichotomy of civilized versus uncivilized P. Keal,
European Conquest and the Rights of Indigenous Peoples, Cambridge: Cambridge University Press, 2003,
46
Lord R. of Killowen, „International Law‟, Law Quarterly Review XLVIII (1896), p. 335.
47
F. von Liszt, Das Völkerrecht. Systematisch dargestellt (5th edition), Berlin: Häring, 1907, pp. 15-38.
48
H. Wheaton, Elements of International Law, Boston: Little, Brown & Co., 1866, p. 10.
49
Ibid.
50
Benedict Kingsbury summarizes Oppenheim (1905) to enumerate the full members of the family of nations: the members
„were the independent European states (including Turkey and Russia), the independent states of North, Central and South
America, plus Liberia, the Congo Free State, and Japan. Egypt was half-sovereign owing to the Turkish suzerainty. Tunis
was half-sovereign owing to the French protectorate. Morocco and Abyssinia were regarded by Oppenheim as “fullSovereign States”, but as members of the Family of Nations only for some purposes (for example, diplomacy and treaty
making), but not for other purposes (such as restrictions on the conduct of war). Similarly Oppenheim viewed Persia, China,
Korea, Siam and Tibet as members of the Family of nations for some purposes, but not as international Legal persons with
the same position as “Christian States”.‟ See B. Kingsbury, „Sovereignty and Inequality‟, European Journal of International
Law 9 (1998), p. 606; on L.F.L. Oppenheim, International Law (1st edition), London: Longmans, 1905, pp. 154-157.
16
New Imperialism and the Legal Disentanglement of Dichotomies
„Within Europe, international order was supposed to provide for peaceful coexistence in an anarchic and
plural world by encouraging toleration: the fundamental norm governing relations between European
states was therefore the reciprocal recognition of each state‟s equality and independence with regard to its
territorial sovereignty. Beyond Europe, … the fundamental norm governing relations between European
states and non-European states was that the latter were backward and that some of the sovereign
prerogatives of indigenous rulers ought to be held by more advanced Europeans in order to introduce
economic, political and judicial benefits of civilized life.‟51
Civilization, according to Keene, performed two roles: defining the border between the two patterns of
international order and describing the ultimate purposes that the extra-European order was for.52 The
project for civilization aimed, on the one hand, for the promotion of economic and technological
progress, and, on the other hand, for the establishment of good government in a legal and political
sense.53 It can even be argued that Europeans imposed their norms and values in the form of the State
(or the society of States) on non-Europeans out of fear for the unknown.
As mentioned before54, Vitoria already acknowledged, although a universal law of nations
existed, which insisted on equality and reciprocity, that a discrepancy existed between the uncivilized,
i.e. the Indians, and the civilized, i.e. the Spanish. This gap was also evident to the positivists. They
asserted that the bridging of this gap had to be effected by, instead of universal natural law, the
„explicit imposition of European international law over the uncivilized non-Europeans.‟55 On this point
positivists attacked naturalism, because naturalists failed to make the distinction between the civilized
and uncivilized world on a non-religious basis. The notion of the law of nations becomes closely
linked to or even coincides with the European society. Non-European communities were excluded
from the international law society and the concerned rules were not applicable to them. Thus, the rules
of international law on acquisition of territory were neither applicable. As a consequence, Westlake
claimed that „the occupation by uncivilized tribes of a tract, of which according to our habits a small
part ought to have sufficed for them, was not felt to interpose a serious obstacle to the right of the first
occupant.‟ 56 This implicated that once non-European States „were excluded from the realm of
sovereignty, they were precluded from making any sort of legal claim‟ within the law of nations
51
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 147. It can be questioned to which extent legal equality between States was a reality, see P.J. Baker,
„The Doctrine of Legal Equality of States‟, British Yearbook of International Law 4 (1923-1924), pp. 1-20.
52
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 6.
53
Ibid., p. 83.
54
See supra note 21.
55
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 54.
56
J. Westlake, Chapters on the Principles of International Law, Cambridge University Press, 1894, p. 137.
17
New Imperialism and the Legal Disentanglement of Dichotomies
„because only sovereign states were able to participate as full members with all the attendant rights
and powers.‟57
Consequently, the main occupation of positivists was defining sovereignty and to decide who
enjoyed sovereignty. In general, positivists defined sovereignty as control over territory. Lawrence, for
example, stipulated that
„International law regards states as political units possessed of proprietary rights over definite portions of
the earth‟s surface. So entirely is its conception of a state bound up with the notion of territorial
possession that it would be impossible for a nomadic tribe, even if highly organised and civilized, to come
under its provisions.‟58
Control over territory was, thus, essential for a State to be regarded as sovereign. However, the
positivists were confronted with another problem. Many Asian and African entities fulfilled the
Austinian criteria and the criterion of control over territory.59 In this light the question emerged of how
to maintain the dichotomy between the civilized and uncivilized societies? The answer of the positivist
was the society test. As Anghie argues
„The distinction between the civilized and uncivilized ... was to be made, not in the realm of sovereignty,
but of society. Society, and the constellation of ideas associated with it, promised to enable the jurist to
link a legal status to a cultural distinction. Thus positivists argued that sovereignty and society posed two
different tests, and the decisive issue was whether or not a particular entity ... was a full member of
international society.‟60
At the end, this meant that uncivilized non-European States were excluded from sovereignty, because
they failed to fulfil the condition of being a member of the Family of Nations. This renewed focus on
(membership of) society made it possible for positivists to overcome the historical fact that nonEuropean States already had obtained sovereignty. Strategies to exclude non-European States were
developed.61 First, it was put forward that law did not exist in certain uncivilized, non-European and
backward territories. Second, the distinction between civilized and uncivilized areas was based on
asserting that, while existing societies may have had their own systems of law, „these were of such an
alien character that no proper legal relations could develop between European and non-European
57
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 55.
58
T. Lawrence, The Principles of International Law, London: Macmillan, 1895, p. 136.
59
Grotius, in his De Iure Belli ac Pacis (Book I, Chapter 3, VIII, 9) already classified Egypt and Ethiopia as monarchies
governed by sovereigns with a highly centralised power: „Rex summo cum imperio erat‟.
60
A. Anghie, „Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law‟, Harvard
International Law Journal 40/1 (1999), p. 28.
61
See for an elaboration of these strategies A. Anghie, Imperialism, Sovereignty and the Making of International Law, New
York: Cambridge University Press, 2005, p. 59-65.
18
New Imperialism and the Legal Disentanglement of Dichotomies
States.‟62 Thus, European States decided according to their standards on whether or not non-European
States could join the Family of Nations; at the end, it involved being recognized by European States63.
Consequently, positivists were occupied in distinguishing the civilized from the uncivilized world. A
next question to be solved would be what to do when two sovereign and civilized States would come
into conflict. Although it is very interesting to discuss the difficult position to which many positivists
were posed in this respect, it would go beyond the scope of this thesis to discuss this problem.
However, the accompanying problems of this question did not arise in the colonial encounter:
it was a confrontation not between two sovereign States, but between a civilized European State and a
backward uncivilized entity. The fact, that the non-European world was deprived of sovereignty, put
positivists in the position to construct „the colonial encounter as an arena in which the sovereign made,
interpreted and enforced the law.‟ 64 In other words, the colonial encounter gave carte blanche to
positivists to construct a system of international law, by imposing European norms and values on nonEuropean lands and peoples. Positivist international lawyers limited the Family of Nations, effectively
evicting non-Europeans from membership, and „forced them to apply for readmission on less
favourable terms, or subjecting them to outright imperial subjection.‟65 With regard to imperialism,
Keene emphasises that a misinterpretation of two propositions made by Grotius on the law of nations66
enhanced the dichotomist world view of a civilized versus an uncivilized part. Grotius‟ first
proposition was that
„the sovereign prerogatives of public authorities are divisible from one another, such that it would be
possible for sovereignty to be divided between several institutions within a single political community, or
… it would be possible for a state to acquire some of the sovereign prerogatives that had originally
belonged to another and exercise them on its behalf.‟67
Grotius proposed, secondly, that
„under certain conditions individuals have a right in the law of nations to appropriate unoccupied lands;
furthermore, if no established political authority acts to protect their rights, the individuals themselves
may conduct a “private war” in their defence and would be justified by the law of nations in so doing.‟68
62
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 61.
63
See for an elaboration on the principle of recognition as perceived in the nineteenth century C.H. Alexandrowicz, „The
theory of recognition in fieri‟, British Yearbook of International Law 34 (1958), pp. 176-198.
64
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 54.
65
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 26. Here Keene summarizes the main argumentation of Charles Alexandrowicz in his An
Introduction to the History of the Law of Nations in the East Indies, Oxford: Clarendon Press, 1967.
66
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 146.
67
Ibid., p. 3.
68
Ibid.
19
New Imperialism and the Legal Disentanglement of Dichotomies
The second proposition will be addressed in Chapter 2. The first proposition, however, is relevant in
the discussion of the dichotomy between the civilized and uncivilized world in the context of New
Imperialism. Grotius‟ first proposition regarding the divisibility of sovereignty was interpreted as a
justification for the imperialism and civilization project of the nineteenth century. As mentioned
above69, Keene attributes two components to the civilization project: the promotion of economic and
technological progress, and the establishment of good governance in legal and political sense. This
project or mission developed together with new international political and legal theories that
„discriminated between Europeans or whites and the rest of the world,‟ and it provided „a potent
justification for the increasingly systematic treatment of the sovereignty of indigenous rulers as
divisible.‟ 70 Therefore, the first proposition of Grotius was interpreted as it would encourage and
justify the dichotomy of civilization and non-civilization, as two different patterns of international
order.
To conclude Chapter 1, the dichotomy of naturalism versus positivism, as we have seen,
especially with Grotius, cannot be regarded as a strict division. Many scholars and interpreters of the
modern times read a strict dualism regarding naturalism and positivism between the writers of the
seventeenth and eighteenth century. Traditional, positivists are styled as opponents of the natural
lawyers because of their alleged rejection of natural law and justice. However, as asserted by
Lesaffer71, in reality most authors on the positive law of nations „acknowledged the existence and the
relevance of natural law and justice and even gave them a place in their system, but they simply had
their focus elsewhere.‟ After the birth of the nation-State structure, States monopolized the creation
and enforcement of the law of nations. From the seventeenth to the nineteenth century, this led to the
establishment of doctrines based on voluntarism and consensualism. In the light of the doctrine, no
rules of the law of nations could be imposed on States without their consent. Jurists of the late
eighteenth century and early nineteenth century combined positivism and naturalism, agreeing on the
existence of a certain universal natural law applicable to all nations without distinguishing between
civilized and non-civilized entities, which had to accommodate a considerable and emerging body of
positive law specific to Europe.72 In contrast to the traditional naturalists, they placed less emphasis
upon an analogy between States and men in a state of nature and natural law. More emphasis was put
upon the development of the law of nations through custom and treaties founded on consent.
Positivism is the prevailing jurisprudence since the nineteenth century and is still the dominant mode
of theorizing international law. As we have seen, naturalism had been the leading theory from the
69
See supra note 53.
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 147.
71
R.C.H. Lesaffer, „The Classical Law of Nations (15th – 18th centuries)‟, 2010, available on: <
http://ssrn.com/abstract=1594444 >, p. 27.
72
A. Anghie, „Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law‟, Harvard
International Law Journal 40/1 (1999), p. 12.
70
20
New Imperialism and the Legal Disentanglement of Dichotomies
establishment of the law of nations, beginning in the sixteenth century, to roughly the end of the
eighteenth century, stipulating that the law of nations could be found in „nature‟, that it was to be
ascertained trough reason, and that it was binding upon all (European) States. Positivism, however,
supposes that a State can only be bound by rules upon which it has consented. A further feature of
positivism in the nineteenth century was its distinction of the civilized and uncivilized world. In the
nineteenth century, dominated by positivists, the membership of the Family of Nations became the
fundamental condition for sovereignty.
The colonial encounter was a confrontation between a civilized European State and a
backward uncivilized entity. The fact, that the non-European world was deprived of sovereignty, put
positivists in the position to construct this encounter as an arena in which the sovereign made,
interpreted and enforced the law. In other words, the colonial encounter made it possible to positivists
to construct a system of international law, based on being included in of excluded from the Family of
Nations, by imposing European norms and values on non-European lands and peoples.
Chapter 2 will address the legal doctrines with regard to title to territory. Themes of who could
acquire territory, the modes of acquisition and legal entitlements to certain territory will be addressed.
This part will centralize the dichotomy of public territorial sovereignty and private property rights to
land – imperium and dominium.
21
New Imperialism and the Legal Disentanglement of Dichotomies
2. Title to territory: International law in
relation to imperium and dominium
The missions of colonization and especially New Imperialism posed the acquisition of territory at the
centre of the expansion of European empires. In order to introduce the question at hand, a discussion
by Edward Keene of the second proposition of Grotius with regard to the law of nations is illustrative.
To repeat the second proposition of Grotius, he stated the following:
„under certain conditions individuals have a right in the law of nations to appropriate unoccupied lands;
furthermore, if no established political authority acts to protect their rights, the individuals themselves
may conduct a “private war” in their defence and would be justified by the law of nations in so doing.‟73
This proposition was used as a justification for New Imperialism and, thus, the occupation of territory
on the African continent.74 Grotius, however, wanted to make clear that the law of nations was not
exclusively a law for nations; it included rights and obligations for individuals and private
corporations too. The concept of property ownership was the main issue that Grotius used to think
about with regard to private individuals and corporations, „while he conceptualized the rights of public
authorities in terms of their possession of marks of sovereignty.‟75 Grotius distinguished the original
acquisition of property (occupatio), before the establishment of civil societies, and the institution of
private property within civil society (dominium), founded on the consent of its members. 76 He
associates occupatio with the right to self-preservation: „each man could at once take whatever he
wished for his own needs, and could consume whatever was capable of being consumed.‟77 With
regard to dominium according to the Grotius‟ meaning, Keene analyses that the right to appropriate by
way of occupatio only exists as a natural right.78 He further analyses that Grotius argued that
73
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 3.
74
The question is however, whether this second proposition was justly interpreted. Grotius argument was „that private
individuals also possessed rights in the law of nations through their natural rights over their persons and their property‟.
Grotius was careful that this did not imply an even more general and popular right of resistance by stating „that, with the
establishment of civil society, natural rights were replaced by a new institution of private ownership that was subject to the
public authority of the sovereign power. But at the same time he identified certain specific circumstances under which
individuals or corporations could continue to exercise their natural right to acquire property, and were entitled to defend that
right with force if necessary‟. As summarized by Edward Keene in E. Keene, Beyond the anarchical society: Grotius,
colonialism and order in world politics, Cambridge: Cambridge University Press, 2002, p. 58.
75
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 52.
76
H. Grotius, De Iure Belli as Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925 (1625), p. 295.
77
Ibid., p. 54.
78
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 53.
22
New Imperialism and the Legal Disentanglement of Dichotomies
„at some point in human history, as population levels increased and people began to form themselves into
social associations, they transformed their naturally acquired possessions into a publicly recognized
institution, dominium, regulated by laws made by the appropriate public authority.‟79
The agreement on establishing the institute of dominium had to come from the supposition that
community ownership was abandoned and further unilateral appropriation was not allowed any longer.
The members of society decided to „confirm each other in their ownership of what they had already
occupied.‟80 The central question, in this light, is how Grotius‟ theory was applied in the practice of
colonization, in other words, how Grotius applied his theory of occupatio and dominium to indigenous
peoples and territories. Grotius suggested that appropriation in the sense of occupatio could continue
even in places where another ruler‟s jurisdiction had been established and was being properly
exercised. He argued that occupatio had two implications: it is the basis for both the public rights of
sovereignty (imperium), and the private rights of ownership (dominium).81 In this regard, he made a
distinction between two different subjects to which sovereignty applied. On the one hand, in its
„primary‟ sense, sovereignty is jurisdiction over persons. On the other hand, in its „secondary‟ sense, it
relates to the possession of territory. 82 In the usual way, these two subjects of sovereignty and
ownership are acquired together by a single act. However, just as the public rights associated with
jurisdiction over persons are separable from one another, so the public dimension of jurisdiction
always remains distinct from the private rights of ownership. 83 Formulated differently, „foreigners
may, through appropriate procedures of course, acquire ownership rights to territory in another state,
without interfering with the sovereign jurisdiction that a ruler has over his or her subjects.‟84
Together with the divisibility of sovereignty 85 , this proposition on the right to individual
property ownership did not clear up what these propositions implicated or should implicate for
colonization according to Grotius. It is not unthinkable that these statements might „permit ownership
rights to be established on territories in other states simply for the reason that they had been never
79
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 53.
80
Ibid. In the words of Grotius: „all agreed, that whatever each one had taken possession of should be his property‟, in H.
Grotius, De Iure Belli ac Pacis (transl. F. Kelsey et al.), Oxford: Clarendon Press, 1925, p. 190.
81
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 56.
82
Ibid.
83
H. Grotius, De Iure Belli ac Pacis (transl. F. Kelsey (ed.)), Oxford: Clarendon Press, 1925 (1625), pp. 206-207, as
summarized by Edward Keene in E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics,
Cambridge: Cambridge University Press, 2002, p. 57.
84
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 57. Grotius illustrated his argumentation: „When the lands assigned to colonies proved to be
insufficient, those who were in charge of the allotment and division assigned to future citizens lands which they had taken
from neighbouring territories. The jurisdiction over the lands which they assigned nevertheless remained under the control of
those from whose territory they were taken‟, in H. Grotius, De Iure Belli ac Pacis (transl. F. Kelsey (ed.)), Oxford: Clarendon
Press, 1925 (1625), p. 207.
85
The divisibility of sovereignty, as theorized by Grotius, is described in Chapter I of the underlying thesis on pp. 16-17.
23
New Imperialism and the Legal Disentanglement of Dichotomies
cultivated or had been vacated.‟86 It is true that Grotius stated that rights could be transferred „not only
by express agreement, but also by abandonment of ownership and the occupation which follows it or
assumes a new force from it.‟87 Keene even asserts that
„It might be the case that “natural equity” ... would provide sufficient grounds for the unilateral
occupation of lands that were in another sovereign‟s domain. Or even, more permissive of all, the natural
right of self-preservation might justify people in crowded countries, whose lands were insufficient for
their population, re-locating to less densely populated parts of the world, where they could on their own
initiative acquire ownership rights over territories under another ruler‟s sovereign jurisdiction.‟88
Here it becomes apparent that Grotius‟ account to the law of nations is essential for the fundamental
distinction between public rights of sovereignty and private rights of property. With regard to this
distinction, many questions arise when considering the practices of New Imperialism and the title to
territory: Who could acquire territory legally and in which way? What were the (legitimate) modes of
acquisition and who could claim to have a legal title over certain territory? What were the images and
experiences of Europeans with regard to non-Europeans, and visa versa? Which role played the
distinction of public versus private law? How could the relation between territorial sovereignty and
private property of land – imperium and dominium – be perceived in the context of international law?
Which role did legal scholars or theorists play in this respect? These questions will be addressed in the
following Sections. First, the modes of acquisition will be addressed (2.1), followed by a more in
depth study of treaties of cession in 2.2. Then, Grotius‟ perspective on imperium and dominium will be
discussed (2.3). The whole will be synthesized and concluded in the last Section (2.4) by connecting
imperium, dominium and New Imperialism.
2.1 Acquisition of territory89
In the nineteenth century, the focus of European States was no longer on just maximizing power and
profits by extending markets for the mother country by monopolizing trade. A political dimension was
added by the belief of Europeans that they had a „responsibility to promote civilization and institute
good government in the countries under their imperial authority.‟ 90 In the context of international
86
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 57.
87
H. Grotius, De Iure Belli ac Pacis (transl. F. Kelsey et al.), Oxford: Clarendon Press, 1925, pp. 227-228.
88
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 57.
89
See for a current and general overview on the acquisition of territory R.Y. Jennings, The Acquisition of Territory in
International Law, Manchester: Manchester University Press, 1963; A. Cassese, International Law (2nd edition), Oxford:
Oxford University Press, 2005, p. 82-84; M.N. Shaw, Title to Territory in Africa, Oxford: Clarendon Press, 1986; M.N. Shaw,
International Law, Cambridge: Cambridge University Press, 2008, p. 487-552; L.F.L. Oppenheim, R.Y. Jennings and A.
Watts (eds.), Oppenheim’s International Law (9th edition, vol. I and II), London: Longman, 1992; J.A. Andrews, „The
Concept of Statehood and the Acquisition of Territory in the Nineteenth Century‟, Law Quarterly Review 94, p. 408-427;and
I. Brownlie, Principles of Public International Law (6th edition), Oxford: Oxford University Press, 2003.
90
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 78.
24
New Imperialism and the Legal Disentanglement of Dichotomies
relations, the expansion of colonial empires was the defining feature of the second half of the
nineteenth century. However, this does not mean that there had been no interaction before the second
half of the nineteenth century. After more than four centuries, an extensive and complex amount of
treaties between Europeans and non-Europeans had already been established.91 In this respect, central
concepts were (and still are) territorial sovereignty and title to territory92, which could be acquired by a
mode, determined according to international law. Territory is a geographical notion in relation to the
physical areas of the world. However, its importance lies in the fact that „it constitutes the tangible
framework for the manifestation of power by the accepted authorities of the State in question.‟93 The
concept of territory, as constitutive element for statehood, contains an external and an internal element,
namely the expression of the power-balance between two coexisting or rivalling entities, and the
relation between the people and the tangible space they inhabit. It can be said that „territory is the
physical aspect of the life of the community as an entity and therefore reflects and conditions the
identity of that community.‟94 As a consequence, territory plays an important role in international law,
because many of the fundamental principles of international law are based on the concept of territorial
exclusivity of the State and sovereign equality of States95, such as the principles of territorial integrity
and political independence. A further related concept to territory is sovereignty, which is exercised
over the State‟s territory. Judge Huber noted in the Island of Palmas case (1928), that „sovereignty in
relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of
such portion in the territory of any particular State.‟96 Sovereignty implies that it is original and that a
State has legal personality within the international legal order, which means that States have (mutual)
rights, duties, powers, competences and titles. In respect to title to territory, Shaw asserts that, „the
concept of title involves in essence a description of those legal and factual elements which by virtue of
91
See C.H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies, Oxford: Clarendon Press,
1967; C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973;
and C.H. Alexandrowicz, „The Role of Treaties in the European-African Confrontation in the Nineteenth Century‟, in: A.K.
Mensah-Brown, African International Legal History, New York: United Nations Institute for Training and Research, 1975,
pp. 27-68.
92
See for an elaboration on territorial sovereignty and title to territory, R.Y. Jennings, The Acquisition of Territory in
International Law, Manchester: Manchester University Press, 1963; and A.F. Burghardt, „The Bases of Territorial Claims‟,
Geographical Review 63/2 (1973), pp. 225-245. More specifically on title to African territory, see M.N. Shaw, Title to
Territory in Africa, Oxford: Clarendon Press, 1986.
93
M.N. Shaw, „Territory in International Law‟, Netherlands Yearbook of International Law 13 (1982), p. 61. For an extended
reading, see M.N. Shaw, Title to Territory, Aldershot: Dartmouth, 2005; and M.N. Shaw, „The Acquisition of Title in
Nineteenth Century Africa: Some Thoughts‟, in P.-M. Dupuy, B. Fassbender, M.N. Shaw and K.-P. Sommermann (eds.),
Common Values in International Law. Essays in Honour of Christian Tomuschat, Kehl: Engel, 2006.
94
M.N. Shaw, „Territory in International Law‟, Netherlands Yearbook of International Law 13 (1982), p. 63.
95
Sovereign equality includes the following elements according to Shaw in M.N. Shaw, „Territory in International Law‟,
Netherlands Yearbook of International Law 13 (1982), p. 67: “a) States are judicially equal; b) Each State enjoys the rights
inherent in full sovereignty; c) Each State has the duty to respect the personality of other States; d) The territorial integrity
and political independence of the States are inviolable; e) Each State has the right freely to choose and develop its political,
social, economic, and cultural systems; f) Each State has the duty to comply fully and in good faith with its international
obligations and to live in peace with other States”. See also I. Brownlie, Principles of Public International Law (6th edition),
Oxford: Oxford University Press, 2003.
96
Island of Palmas case, 2 United Nations Reports of International Arbitral Awards (1928), p. 829 and 838. See also Aaland
Islands case, League of Nations Official Journal Sp. Supp. No.4 (1920) and the Report of the Commission of Jurists in the
Aaland Islands case, LN Council Doc. B7n21/68/106 (1921).
25
New Imperialism and the Legal Disentanglement of Dichotomies
the norms of international law must be present before territorial sovereignty may be validly acquired
or maintained.‟97 In addition to these legal and factual elements, the title also determines to which
extent a state may exercise authority over its territory; the title to territory expresses the limits of State
sovereignty. As a consequence, title is closely linked to the concept of effective control. Thus, territory
became more and more crucial in separating one sovereign from another. Robert Lansing remarks on
the sovereignty of a State that
„It is an accepted principle of the law of nations that every state whatever may be its population, power
and resources, is the political equal of every other state, and that its sovereign is independent and supreme
within the state. There is no such thing as degrees of sovereignty among states.‟98
In the second half of the nineteenth century, the central question is how international law, and thus
how the doctrine of positivists regards the expansion of territory by European powers and encounter of
indigenous peoples. To justify this expansion, the positivist task was to articulate the concepts and
methods by which the uncivilized were to be assimilated into the framework of law. The importance
was that „the re-entry of non-European societies into the sphere of law could now take place on terms
which completely subordinated and disempowered those societies.‟99 Anghie distinguishes four basic
and often interrelated techniques which were used to bring non-European peoples within the scope of
international law: treaty relations between Europeans and non-Europeans, colonization, complying
with the standard of civilization, and protectorates. 100 The third technique, complying with the
standard of civilization, implies that independent non-European States, for example Japan and Siam,
could be accepted into international society by fulfilling the requirements of the „standard of
civilization‟ and would thus be recognized by European States, as members of the Family of
Nations. 101 Protectorates, as the fourth and last technique to assimilate non-European people,
concerned a situation in which European States exercised extensive control over non-European States,
by having the external affairs in hand, while not officially assuming sovereignty over those States.102
In other words, the external sovereignty of non-European States was denied and was taken over by
European States.
Henceforth, the focus will be on the first two techniques of bringing non-European peoples in
the „realm of international law‟ – treaty relations between Europeans and non-Europeans, and
colonization. Treaty relations, which were mainly based on trade and profit, between European
civilized and non-European uncivilized peoples, as mentioned before, already existed for a long
97
M.N. Shaw, „Territory in International Law‟, Netherlands Yearbook of International Law 13 (1982), p. 79.
R. Lansing. „Notes on Sovereignty in a State‟, American Journal of International Law 105 (1907), p. 407.
99
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 66.
100
Ibid., p. 67.
101
Ibid.
102
Ibid., p. 87.
98
26
New Imperialism and the Legal Disentanglement of Dichotomies
time.103 Prior to the nineteenth century, treaties were already concluded, which were characterized by
the absence of imperialism and were based on natural law. 104 Treaties concerned a wide array of
arrangements, which ranged from governing trade relations to ceding of sovereignty. However, in the
second half of the nineteenth century, a political dimension was added to treaty practice.105 In this
light, the Conference of Berlin (1884-1885) marked this new phase of imperialism; it constituted a
turning point in history and led to the confrontation of two worlds of civilization. Or, as
Alexandrowicz describes this moment, it forms „the transition from one system of law to another, from
the coastline to the interior of Africa, from relations on a footing of equality and non-discrimination to
colonial institutions.‟106 The critical issue of the Berlin Conference was the acquisition of African
territory, in first instance, as long as it was useful for safe and stable commercial activities. Although
African peoples were not invited to and, thus, not represented at the Conference, they were mentioned
in the Final Act.107
Article 34 and 35 of the Final Act of the Conference were the central provisions. Article 34 reads as
follows:
„Any Power which henceforth takes possession of a tract of land on the coast of the African Continent
outside its present possessions, or which, being hitherto without such possessions, shall acquire them, as
well as the Power which assumes a Protectorate there, shall accompany the respective act with a
notification thereof, addressed to the other Signatory Power of the present Act, in order to enable them, if
need be, to make good any claims of their own‟.
In addition, Article 35 states:
103
Trading companies even got legal personality by characterizing them as extensions of the European sovereign powers.
Thus, trading companies were capable to impose sovereign rights on non-European peoples who were deprived of any sort of
sovereignty. See on this subject M.F. Lindley, The Acquisition and Government of Backward Territory in International Law:
Being a Treatise on the Law and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 94; and A. Anghie,
Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005, p. 68.
104
Alexandrowicz describes this law as applicable to „the universality of the family of nations irrespective of race, creed,
civilization, or continent‟. C.H. Alexandrowicz, „The Role of Treaties in the European-African Confrontation in the
Nineteenth Century‟, in: A.K. Mensah-Brown (ed.), African International Legal History, New York: United Nations Institute
for Training and Research, 1975, p. 33.
105
This happened under the emerging dominance of positivism. This doctrine considered the European community of States
as „the inner club of the family of nations‟. This club „assumed the discretionary power of admitting or rejecting Asian or
African states; it also considered war and the application of force as legitimate means of settling power positions‟. C.H.
Alexandrowicz, „The Role of Treaties in the European-African Confrontation in the Nineteenth Century‟, in: A.K. MensahBrown (ed.), African International Legal History, New York: United Nations Institute for Training and Research, 1975, p. 33.
106
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p.
117.
107
Article 6 reads as follows: „All the Powers exercising sovereign rights or influence in the aforesaid territories bind
themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their
moral and material well-being and to help in suppressing slavery, and especially the Slave Trade. They shall, without
distinction of creed or nation, protect and favour all religious, scientific, or charitable institutions and undertakings created
and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of
civilization. Christian missionaries, scientists, and explorers, with their followers, property, and collections, shall likewise be
the objects of especial protection. Freedom of conscience and religious toleration are expressly guaranteed to the natives, no
less than subjects and to foreigners. The free and public exercise of all forms of Divine worship, and the right to build
edifices for religious purposes, and to organize religious Missions belonging to all creeds, shall not be limited or fettered in
any way whatsoever‟.
27
New Imperialism and the Legal Disentanglement of Dichotomies
„The Signatory Powers of the present Act recognize the obligation to insure the establishment of authority
in the regions occupied by them on the coasts of the African Continent sufficient to protect existing
rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon‟.
Most important assertions in these two provisions were the notification of future acquisitions of the
African coastal areas to other European States, and the introduction of the principle of „effective
occupation‟. The concerned provisions had to guarantee the Europeans‟ freedom of commercial
activities, including trade and transit, on the one hand, and they had to secure the already vested rights
of Europeans, on the other hand.108 As a consequence, European imperialism in the sense of promoting
civilization and good governance on the African continent was justified in two ways: by balancing
conflicting interests among European powers and by legitimating their „effective authority‟, as
articulated in Article 35 of the Berlin Act. However, the Final Act did not resolve the fundamental
problem of the status of African political entities in European international law. Yasuaki states that the
core of the problem is that European States, in excluding non-Europeans of the Family of Nations,
could hardly legitimize „the transfer of African territories or the sovereignty – either external as in the
case of protectorates or full in the case of annexation or cession – of African “tribes” or their
“chieftains” to the European nations by means of treaties concluded with those rulers.‟ 109
Consequently, Yasuaki questions „if those “tribes” were not subjects of international law, and lacked
the independent sovereign status in European international law, how could they “lawfully” “cede” or
“transfer” their “territories” or “sovereignty” to the European states by means of treaties?‟ 110 In first
instance, the principle of „effective occupation‟ of Article 35 of the Berlin Act provided an answer.
However, effective occupation was only applicable under the conditions of acquiring territories which
were terra nullius and, thus, the non-existence of treaty relations.111 As a result, the most applied mode
of territorial acquisition was cession of sovereignty by treaty, which partly gives an answer to
Yasuaki‟s question. Only partly, because cession by treaties was problematic too, as will be argued
later on. Among the modes of acquisition during the imperial practices in the second half of the
108
O. Yasuaki, „When was the Law of International Society Born? An Inquiry of the History of International Law from an
Intercivilizational Perspective‟, Journal of the History of International Law 2 (2000), p. 44.
109
Ibid., p. 46. See also J. Fisch, „Africa as terra nullius‟, in: S. Förster et al, Bismarck, Europe, and Africa, New York:
Oxford University Press, 1988; and M.F. Lindley, The Acquisition and Government of Backward Territory in International
Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion, London: Longmans, 1926.
110
O. Yasuaki, „When was the Law of International Society Born? An Inquiry of the History of International Law from an
Intercivilizational Perspective‟, Journal of the History of International Law 2 (2000), p. 46.
111
J. Fisch, „Africa as terra nullius‟, in: S. Förster et al, Bismarck, Europe, and Africa, New York: Oxford University Press,
1988, p. 356 and 358; and M.F. Lindley, The Acquisition and Government of Backward Territory in International Law:
Being a Treatise on the Law and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 81. Lindley
summarizes the areas which can be defined as terra nullius and, which are open to acquisition by occupation: 1) uninhabited
lands, „unless they are unsuitable for permanent habitation and are being used for the purpose for which they are suitable, or
are islands which are situated within territorial waters, or have been formed by alluvium from occupied territory‟; 2) lands
inhabited by individuals „who are not permanently united for political action‟; 3) lands which have been abandoned by their
former occupants; and 4) lands which „have been forfeited because they have not been occupied effectively‟. In addition,
Lindley remarks that „lands inhabited by any permanent political society can be acquired only by conquest, cession or
prescription‟.
28
New Imperialism and the Legal Disentanglement of Dichotomies
nineteenth century and the early twentieth century112, cession by treaty was the most common way of
acquiring African territory, despite the fact that non-Europeans did not fall under international law.
„Many states had conducted themselves on the basis that these treaties were valid,‟ because
„international stability would have been severely undermined if it suddenly became impossible for
states to question the arrangements, titles and interests which had been ostensibly established by these
treaties.‟ 113 Anghie even asserts that „the fear of disputes over title to colonial territories among
European powers‟ inspired the parties of the Conference of Berlin (1884-1885), and that „the nonEuropean world had to be located in the positivist system, not merely for purposes of control and
suppression, but to prevent its ambiguous status from undermining European solidarity.‟114 Therefore,
positivists had to deal with the question what was to be made of the many treaties between the
European and non-European entities, of which the latter was lacking personality and, thus, did and
could not participate in international society. Jurists had to develop „a system of classification, or
taxonomy, which could properly categorise every entity encountered in the course of colonial
expansion‟115 according to the degree of civilization. In practice, however, colonial expansion was
effectuated by a „haphazard and chaotic series of encounters between rival European states, trading
companies ... and African societies.‟116 European powers developed and applied different perspectives
of native personality, depending on their own interests. Native personality was, thus, undetermined
and fluid in the practice of colonial expansion, and it was created „through the encounter with a
European state which would inevitably “recognise” the capacity of the non-European entity according
to its own needs.‟117 In addition to the problem of capacity of non-Europeans, there were another two
issues, which are important, but will only be mentioned here. First, the issue to what extent the natives
were capable to understand the treaties, and, second, the issue that, while Europeans claimed to derive
rights, they refused to accept the obligations arising from treaties with non-Europeans. Thus, the main
point made is that uncivilized non-European entities had an ambiguous position in relation with
European States. On the one hand, African territory was implicitly recognized not to be terra nullius
by the treaty practice between Europeans and non-Europeans before and after the Berlin Conference.
On the other hand, African political entities lacked capability or personality to act as a member of the
Family of Nations, the international (legal) order. In other words, non-Europeans were at the same
112
Lindley distinguishes six modes of acquisition: papal grants, discovery, (effective) occupation of terra nullius, conquest,
cession and prescription, see M.F. Lindley, The Acquisition and Government of Backward Territory in International Law:
Being a Treatise on the Law and Practice Relating to Colonial Expansion, London: Longmans, 1926, pp. 123-180.
113
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 71.
114
Ibid.
115
Ibid., p. 77. See also J. Westlake, Chapters on the Principles of International Law, Cambridge University Press, 1894, pp.
145-146.
116
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 79.
117
Ibid.
29
New Imperialism and the Legal Disentanglement of Dichotomies
time within and without the realm of international law. This ambiguous situation was purely based on
the on the arbitrariness and interests of European States.
The second technique to bring non-European States within the scope of international law is by
way of colonization, implicating that non-Europeans were subjected to European control. Various
methods, derived from Roman law concepts of property118, were at hand to effectuate this subjugation,
for instance, discovery, occupation (of terra nullius), conquest, and cession. 119 The classical
categorization of modes of acquisition is, however, often extremely difficult and controversial to apply
in practice, because a set of facts may implicate the application of more than one of the modes. The
result of these modes of acquisition 120 could be the establishment of a sphere of influence, a
protectorate121, effective occupation, or even annexation, colonization, or appropriation of territory.
Lindley enumerates the modes of acquisition, as they were defined by positivists, in his The
Acquisition and Government of Backward Territory in International Law (1926)122. And, although
Lindley is a late positivist, his definitions of modes of acquisition reflect the content of these modes at
the end of the nineteenth century, in other words, he based his definitions on the writings of positivists
of the nineteenth century. His very first remark on the acquisition of territory was the assertion that the
law of nations placed „no veto on the acquisition of territory on account of its relative backwardness or
advancement.‟123 The law of nations prescribes the mode(s) of acquisition which has (have) to be
employed, according to the condition of the territory, if a valid title is to be obtained. Lindley reviews
the facts giving European States a full or contingent title, which the European States have recognized
as valid vis-à-vis other States, namely papal grants, discovery, effective occupation, conquest, cession
and prescription. 124 These modes of acquisition will shortly be addressed. Firstly, papal grants, in
particular promulgated during the time of the great discoveries (15th-16th centuries), entailed the
Popes‟ claims of power to „grant to Christian monarchs the right to acquire territory in the possession
of heathens and infidels‟. Secondly, it came to be settled practice that discovery by the representative
of a European State was insufficient to exclude all the other nations from the region discovered.
Because European States were all in pursuit of the same object of bestowing civilization and
Christianity on inhabitants,
118
See for example R.C.H. Lesaffer, 'Argument from Roman Law in Current International Law: Occupation and Acquisitive
Prescription', European Journal of International Law, 16 (2005), pp. 25-58.
119
Oppenheim listed five modes of acquisition of territory in 1912: cession, occupation, accretion, subjugation and
prescription. See L.F.L. Oppenheim, International Law (2nd edition), London: Longmans, 1912, p. 284. See also J.A.
Andrews, „The Concept of Statehood and the Acquisition of Territory in the Nineteenth Century‟, in: M.N. Shaw (ed.), Title
to Territory, Aldershot: Dartmouth Publishing Company, 2005, pp. 111-130.
120
See for an elaboration on the modes of acquisition used on the African continent M.N. Shaw, Title to Territory in Africa,
Oxford: Clarendon Press, 1986.
121
The following States became protectorates: Bechuanaland, Gambia, parts of the Gold Coast, Egypt, Kenya, Morocco,
Nigeria, Northern Rhodesia, Nyasaland, Sierra Leone, Somaliland, Tunisia, Uganda and Zanzibar.
122
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926.
123
Ibid., p. 1.
124
Ibid., pp. 123-180.
30
New Imperialism and the Legal Disentanglement of Dichotomies
„it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to
establish a principle, which all should acknowledge as the law by which the right of acquisition, which
they all asserted, should be regulated as between themselves. This principle was, that discovery gave title
to the government by whose subjects, or by whose authority, it was made, against all other European
governments, which title might be consummated by possession.‟125
Hence, discovery is not sufficient by itself to confer a full title to territory. Discovery gives an
„inchoate title‟, a title „has been usually respected provided it was soon after followed by a real
possession.‟ In other words, as discovery is followed by the possession of the territory, a valid title to
the territory is acquired. That title has a temporary nature, and if the occupation is not effectuated
within a reasonable time, it will expire, and other States will be free to annex and occupy the territory.
Thirdly, effective occupation is based on the Roman law126 of occupation and implied that possession
was necessary to the perfection of the title. Lindley states that „a valid title to backward territory – at
all events to newly acquired territory, and probably also to older acquisitions – depends upon the
existence throughout the region, within a reasonable time after the first formal taking of possession of
the announcement of a claim to exclusive control, of an administration sufficient for the protection of
life and property.‟127 The determination of what is sufficient depends on the circumstances.128 Despite
the seemingly strict formulation of „effective control‟ by conditioning that effective control and de
facto control over the territory in combination to the intent of appropriation were needed to acquire
sovereignty over the territory, it was still not clear when effective control was attained.129 Fourthly,
conquest, as a title to territory, „assumes the absence of any formal transfer on the part of the previous
sovereign, whether that sovereign be an advanced State or a native political society, and requires (1)
the taking possession of the territory by force, coupled with (2) the intention and (3) the ability to hold
the territory as its sovereign.‟130 Within the framework of the nineteenth century, conquest was a legal
125
Ibid., p. 129.
In the light of the analogy between Roman law and the law of nations, Randall Lesaffer has written an interesting article
on the occupation of terra nullius and acquisitive prescription, see R.C.H. Lesaffer, 'Argument from Roman Law in Current
International Law: Occupation and Acquisitive Prescription', European Journal of International Law, 16 (2005), pp. 25-58.
See also M.N. Shaw, „The Acquisition of Title in Nineteenth Century Africa: Some Thoughts‟, in P.-M. Dupuy, B.
Fassbender, M.N. Shaw and K.-P. Sommermann (eds.), Common Values in International Law. Essays in Honour of Christian
Tomuschat, Kehl: Engel, 2006, pp. 1029-1049.
127
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 159.
128
Lindley describes two examples of circumstances: „If the territory contains a large population, or is one to which a good
many traders resort, elaborate administrative machinery may be necessary. If, on the other hand, it is remote, or small, or
incapable of accommodating more than a small or transitory population, a rudimentary administrative organization may be all
that is required; while in the case of small islands used merely for the purpose of a particular business, such as the catching
and curing of fish or the collecting of guano, the presence of an official or two may be sufficient‟. M.F. Lindley, The
Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating
to Colonial Expansion, London: Longmans, 1926, p. 159.
129
See further M.N. Shaw, International Law, Cambridge: Cambridge University Press, 2008, p. 502-507.
130
Here Lindley bases his definition on the writings of W.E. Hall, A Treatise on International Law (2nd edition), Oxford:
Clarendon Press, 1884. See M.F. Lindley, The Acquisition and Government of Backward Territory in International Law:
Being a Treatise on the Law and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 160. Hall
emphasises that „conquest consists in the appropriation of the property in, and of the sovereignty over, a part or the whole of
the territory of a state, and when definitely accomplished, vests the whole rights of property and sovereignty over such
126
31
New Imperialism and the Legal Disentanglement of Dichotomies
and valid mode to acquire territory and, thus, to expand European empires. As a consequence of the
conquest, the remaining inhabitants of conquered and annexed territory, as subjects of the defeated
sovereign, become subjects of the conquering State for external purposes, while their rights within the
conquering State will depend on his domestic law.131 In practice, the territory of non-European peoples
could be appropriated by European States through occupation on the basis that a non-European
community did not correspond with the structure of a State. 132 Fifthly, a cession 133 of backward
territory may be made by the native sovereign; or by an advanced sovereign, such as a modern State,
by whom the territory has been previously acquired. Additionally, a cession may entail the whole of
the sovereignty, as in the case where the external sovereignty is ceded by a native chief in return for
protection. 134 An extensive elaboration on the acquisition of territory by cession will be given in
section 2.2. Sixthly, prescription forms the title to sovereignty in cases
„where no title, or no sufficient title, can be shown by way of occupation, conquest or cession, but the
territory has remained under the continuous and undisturbed sovereignty of the claimant for so long a
period that the position has become part of the established international order.‟135
Briefly, contemporary positivist jurists paid their attention to what acts were sufficient to
determine that the European State had acquired control over the territory, and whether an occupation
was effective in order to prevent a State‟s claim that it had acquired a valid title over certain territory.
Both assertions depended on the degree of civilization of the concerned organized polity.
In the end, as we also have seen in Chapter 2, the doctrine of recognition has a fundamental
role in positivist thought. The doctrine assumes the existence of a properly constituted sovereign. Law
is constituted only by those principles which are created and accepted by a sovereign, and the
existence of entities within the Family of Nations depends on whether or not they have been granted
personality by the sovereign. Anghie goes even further by arguing that the recognition doctrine was
territory in the conquering state.‟ W.E. Hall, A Treatise on International Law (2nd edition), Oxford: Clarendon Press, 1884,
pp. 522-529. See also S. Korman, The Right of Conquest. The Acquisition of Territory by Force in International Law and
Practice, Oxford: Clarendon Press, 1996; and P. Keal, European Conquest and the Rights of Indigenous Peoples, Cambridge:
Cambridge University Press, 2003.
131
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 164.
132
Anghie quotes Oppenheim: „Only such territory can be the object of occupation as is no State‟s land, whether entirely
uninhabited, as e.g. an island, or inhabited by natives whose community is not to be considered as a State. Even civilized
individuals may live and have private property on a territory without any Union by them into a State proper which exercises
sovereignty over such territory. And natives may live on a territory under a tribal organization which need not be considered
a State proper.‟ See A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge
University Press, 2005, p. 83; and L.F.L. Oppenheim, International Law (2nd edition), London: Longmans, 1912, p. 292.
133
It may be by way of exchange, sale or gift. Cession was in most cases effectuated by way of a treaty. This mode of
acquisition of territory differs from the first technique of bringing non-Europeans under the „realm of international law‟, in
that its primary purpose is transfer of territory. The first technique, described as treaty practice between Europeans and nonEuropeans, was not, in first instance, focused on the transfer of territory.
134
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 166.
135
Ibid., p. 178. See for an elaboration on the development of prescription in international law D.H.N. Johnson, „Acquisitive
prescription in international law‟, British Yearbook of International Law 27 (1950), pp. 332-354.
32
New Imperialism and the Legal Disentanglement of Dichotomies
about „affirming the power of the European states to claim sovereignty, to reinforce their authority to
make such determinations and, consequently, to make sovereignty a possession that they could then
proceed to dispense, deny, create or partially grant.‟ 136 He further asserts that the history of
sovereignty doctrine in the nineteenth century
„is a history of the processes by which European states, by developing a complex vocabulary of cultural
and racial discrimination, set about establishing and presiding over a system of authority by which they
could develop the powers to determine who is and is not sovereign.‟137
This conclusion of Anghie is a very far-reaching point of view. Nevertheless, I agree with him that the
doctrine of recognition in determining or granting sovereignty and, thus, achieving personality within
international law, is arbitrary and discriminative because of its dependence on individual interest of
European States. This theory on two distinctive models of sovereignty bears a clear resemblance to the
model of two patterns of international order, as theorized by Keene. Both authors emphasize that two
different, but interrelated and interdependent worlds existed in the nineteenth century. On the one
hand, a European and civilized world was constructed. This order was one in which States had a
tolerating mission in respecting each other‟s sovereignty and territorial integrity. On the other hand, a
non-European and uncivilized world was distinguished. The mission of civilization in the positive
sense of bringing European values and instituting good governance, or, in the negative sense of
assimilating non-European people, was the central activity in this world. As a conclusion of this
Section, a characterisation of the nineteenth century making the division of the world explicit:
„It posits an essentialist dichotomy between the non-European and the European; it characterises relations
between these entities to be inherently antagonistic; it establishes a hierarchy between these entities,
suggesting that one is advanced, just and authoritative while the other is backward, violent and barbaric; it
asserts that the only history which may be written of the backward is in terms in progress towards the
advanced; it assumes and promotes the centrality of the civilized; and it contemplates no other approaches
to the problems of society that those which have been formulated by the civilized.‟138
In other words, European international law came to „cover, though not apply to, the African continent
as a quiet companion of imperialistic diplomacy and colonialism.‟139 This dichotomy forms the scarlet
thread throughout the whole theory on colonization. This is especially the case in the theories and
practices of acquiring territory on the African continent. As a consequence, the dichotomy of civilized
versus uncivilized, which is justified by the argumentation of contemporary legal scholars, in
sovereignty doctrine answers in first sight the questions of, firstly, how to legitimize the transfer of
136
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 100.
137
Ibid.
138
Ibid., p. 113.
139
O. Yasuaki, „When was the Law of International Society Born? An Inquiry of the History of International Law from an
Intercivilizational Perspective‟, Journal of the History of International Law 2 (2000), p. 50.
33
New Imperialism and the Legal Disentanglement of Dichotomies
African territories or the sovereignty of African peoples or their chieftains to the European nations by
means of treaties concluded with those rulers. Secondly, if those peoples were not subjects of
international law, and lacked the independent sovereign status in European international law, how they
could lawfully cede or transfer their territories or sovereignty to the European States by means of
treaties. However, in practice this was not as obvious. In order to answer these fundamental questions
fully and accurately, it is necessary to scrutinize the treaty practice between European States and
African entities. As will be seen, the dichotomy of public versus private law is a central issue in the
treaty making practices at the end of the nineteenth century on the African continent.
2.2 Cession and treaty making practice
The „Scramble‟ for title to African territory was in first instance not a competition for the occupation
of land by original title but a race for obtaining derivative title. It was seen as a necessity that
European powers acquired derivative titles according to the rules of international law regarding to
negotiation and conclusion of treaties. Here, emphasis has to be put on the fact that Africa could not
have been considered terra nullius. Within living memory, the continent had been covered by (a
network of) political entities resembling States, in the European sense, and empires of a great diversity
which revealed some similarities and even traces of unity. Territory could be acquired from such
entities by bilateral transaction only unless resort was made to war and conquest.140 Many treaties,
contracts and agreements over land and territory were concluded during the Age of New Imperialism
between Europeans, whether or not as delegates of the State, and African people(s). Treaties are
„consensual agreements between two or more subjects of international law intended to be considered
by the parties as binding and containing rules of conduct under international law for at least one
(normally for all) of the parties.‟141 In the light of treaty making practice, the fundamental principles,
accepted by and applicable to everyone, are pacta sunt servanda, good faith, freedom of consent,
equality of parties, reciprocity of rights and duties, and nemo plus iuris transferre potest quam ipse
habet. This Section will focus on the interpretation and execution of treaties, contracts and agreements
during the Age of New Imperialism. A preliminary question arises directly, namely to what extent
there could be spoken of „treaties‟ between European States and African political entities, taking into
account that treaties only could be concluded between States?142 In the context of Africa, various terms
for political entities like societies, communities, groups, clans, tribes etc. are used to indicate a
gathering of people. The existence of a network of entities endowed in various degrees with organised
140
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p. 7.
See also M.N. Shaw, „The Acquisition of Title in Nineteenth Century Africa: Some Thoughts‟, in P.-M. Dupuy, B.
Fassbender, M.N. Shaw and K.-P. Sommermann (eds.), Common Values in International Law. Essays in Honour of Christian
Tomuschat, Kehl: Engel, 2006, pp. 1029-1049.
141
R. Bernhardt, „Treaties‟, in R. Bernhardt (ed.), Encyclopedia of Public International Law, 1992, p. 459.
142
See for example A. Allott, „Boundaries in Africa: A Legal and Historical Survey‟, in: A.K. Mensah-Brown (ed.), African
International Legal History, New York: United Nations Institute for Training and Research, 1975, pp. 69-86.
34
New Imperialism and the Legal Disentanglement of Dichotomies
political power made it impossible for Europeans to consider Africa terra nullius. European
international law, on the other hand, entailed concepts of sovereignty, nation, State, independence and
equality. Although the European civilized world was State-centric and the African uncivilized143 world
was not, European States (silently) agreed on the possibility of concluding „treaties‟ with extraEuropean entities for the purpose of their own interest.144 In this context, it would be interesting to
study the relation between sovereignty and the territorial State in relation to European international
law. However, this would go beyond the scope of this thesis. For now it suffices to conclude that
treaties could be concluded between the two parties, based on the consent and (common) interest of
European States.
The reading of African treaty material will rarely result in finding documents testifying of
unilateral occupation of territory.145 In general, treaties served cession of sovereignty over territory. As
mentioned before, cession in the context of the nineteenth century of backward territory may be made
by the native sovereign or by a more advanced sovereign, by whom the territory has been previously
acquired. Cession can entail the transfer of sovereignty in whole or in part. Cession by a State has to
be made by the person or body that is recognized as competent to make it under the Constitution of the
particular State. If this person or body does not have this competence, this would turn the cession
voidable. In addition, cession is also voidable, if it was obtained through fraud, or by force exercised
on the persons negotiating on behalf of the ceding State.146 However, according to Lindley a cession is
not void by reason of the cession „having been extorted by force threatened or directed towards the
State as a whole – cessions have frequently been made by a defeated State as the price of the
termination of hostilities‟. He argues that
„Such a forced cession, from the point of view of morality and justice, may differ in nothing from a
conquest; its results are recognized by International Law on a similar footing. A State which cedes
territory under compulsion may, however, be able to make the cession subject to mitigating conditions,
143
Although the African continent was not State-centric, there were sovereign or semi-sovereign entities. Around 1872 there
were, according to Alexandrowicz the following entities: „Egypt (a tributary of Turkey but since 1882 under the de facto
British occupation), the state of the Mahdi (which had conquered in the 1880s Khartoum and the Egyptian Sudan), Tripoli (a
pashalik controlled by Turkey), Tunesia (a French protectorate), Morocco (an independent kingdom), Liberia (an independent
republic), Dahomey (composed of two vassal states of France), the Fulani state of the Sultan of Sokoto (under British
protection), the Sultans of the Central Sudan, such as Bornu and Kanem (in the British sphere of interest), the Sultanate of
Zanzibar (under British protection), some semi-independent Somali chieftainships and the empire of Ethiopia which had
shaken off Italian protection. Among these states only Egypt, Tunesia, Morocco, Liberia, and Ethiopia were to survive
colonial domination as separate entities. The first three states continued as protectorates and only Liberia and Ethiopia
remained entirely independent and thus eligible to join the League of Nations after World War I‟. C.H. Alexandrowicz, „The
Role of Treaties in the European-African Confrontation in the Nineteenth Century‟, in: A.K. Mensah-Brown (ed.), African
International Legal History, New York: United Nations Institute for Training and Research, 1975, p. 28.
144
Shaw remarks that „the nation-state in the European sense did not really develop in Africa. Fluid frontiers characterized
the continent and where identifiable States arose they invariably contained a variety of tribal groups. On the other hand,
defined communities such as the Ibos of West Africa of the Kikuyu of East Africa did not create an administratively
centralized structure, but lived politically disorganized though culturally united‟. M.N. Shaw, Title to Territory in Africa,
Oxford: Clarendon Press, 1986, p. 30.
145
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p. 12.
146
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 166.
35
New Imperialism and the Legal Disentanglement of Dichotomies
which the transferee State may be willing to accept in return for the advantages which a cession offers as
compared with a conquest.‟147
Therefore, under certain conditions, a forced cession could resemble a conquest. Cession has to meet
certain conditions. First, an agreement made by a native sovereign can only be validly made with, or
with the consent of, the chief or government to whom the paramount rights over the rights over the
region belong.148 Second, with regard to the capacity of the parties, the treaty should be concluded, or
asserted to, by the „person or body who, according to the law of the Government or the custom of the
tribe, possesses, or might reasonably be expected to possess, the power to make the cession.‟149 The
third condition concerns the form of a cession. The agreement should be made or executed in the form
„which is usually adopted for acts of a public nature among the people with whom it is contracted.‟150
Fourth, it has to be ensured that the provisions of the treaty should be understood by the concerned
natives. The fifth, and last, requirement entails the question whether a cession by a native chief or
people is invalidated merely by the fact that it was made under compulsion. In the case of a cession,
made under compulsion, between two members of the Family of Nations, Lindley argues that such a
cession will not have effect in law. However, he also remarks that the similar rule does not account for
compulsory cessions made between Europeans and native or indigenous peoples.151 On the other hand,
it should be mentioned that importance is sometimes attached to the fact that the agreement was freely
entered into by the contracting natives. Although Lindley does not ascertain that these rules fall within
the scope of international law152, he acknowledges that if these rules „are not in substance complied
with, the acquiring Power loses the legal protection which a valid Agreement would have given it for a
reasonable time between the making of the Agreement and the establishment of an efficient
administration over the territory.‟153 In the following, the practice of concluding and executing treaties
of cession will be addressed.
What happened in practice with regard to cession by treaty? Practice posed three fundamental
questions: the legal capacity of the contracting parties, in particular that of African rulers, the freedom
147
Ibid.
Ibid., p. 169.
149
Ibid., p. 171.
150
Ibid., p. 172.
151
Ibid., p. 174-175. Lindley argues that „however repugnant it may seem to morality or natural justice that a weak or
backward nation should be bound by a treaty which virtually takes away its independence and which it had no option but to
make, it does not appear, having regard to the practice of States, that International Law, in its present stage of development,
can declare the treaty void on that ground alone‟.
152
He also excludes non-European peoples on the ground of the dichotomy European versus non-European order, by quoting
Westlake: „[Westlake] objects that if International Law made any such requirement, a Power might have fulfilled the
conditions laid down by the Final Act of the Berlin Conference and yet be liable to have its title disputed on the ground that
the cession from the natives was bad in regard to such matters as the capacity of the native authority to make the cession, or
the form in which it was made‟. M.F. Lindley, The Acquisition and Government of Backward Territory in International Law:
Being a Treatise on the Law and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 175.
153
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 177.
148
36
New Imperialism and the Legal Disentanglement of Dichotomies
of consent, and the form of treaties and the application of treaty provisions.154 Hereinafter, the focus
will be on the latter issue, the character of the treaties of cession. From case studies of, e.g.
Alexandrowicz and Hesse155, it can be learned that several African treaties bore a „public international
law‟ character. Alexandrowicz summarizes the writing of Hesse on the legal capacity of contracting
parties and the legal character of the contract or treaty, as follows:
„The author referring to the Rulers (called Captains) emphasises that they had what [Hesse] defines as
“Aktivlegitimation” i.e. active capacity to confer rights in their territories to other sovereigns. The
German agencies (Companies) which exercised delegated sovereign powers and were the transferees of
those rights by treaty and are defined as having “Passivlegitimation” i.e. the capacity to receive the rights.
Important consequences followed from the legal status of the contracting parties. Dr. Hesse underlines
that the agreements concluded by them are transactions in public international law and not in private law.
What was transferred was not property of the land but sovereignty. This decided for once and for all the
question whether the contracting German Companies obtained the ownership of the land. Treaties of
cession of territory do not effect private rights in the ceded territory though of course a new sovereign can
by the regime of private law and real property.‟ 156
It has to be mentioned that, for a great part, the African treaties were real and, thus, not based
on the person of the African ruler; they were not only binding upon the concluding ruler, but also upon
his heirs and successors.157 Many of these treaties contain stipulations to the effect that transfer of
sovereignty would not affect the private legal rights of natives in territory the sovereignty over which
was transferred to a European power, or, the other way around, to the effect that the transfer of private
property of land would not interfere with territorial sovereignty.158 An example of such a stipulation
can be found in the Congo treaties concluded between 1889 and 1891. It states that „the Chief and his
people (keeping the property of their lands) will be able to sell them or let them to foreigners,
whatever their nationality, and to collect rent.‟ 159 Thus, reference in treaties to the preservation of
property rights was made in order to „strengthen the conviction that transfer of sovereign rights meant
a transaction within the realm of international law.‟160
154
C.H. Alexandrowicz, „The Role of Treaties in the European-African Confrontation in the Nineteenth Century‟, in: A.K.
Mensah-Brown (ed.), African International Legal History, New York: United Nations Institute for Training and Research,
1975, p. 29.
155
C.H. Alexandrowicz, The European – African Confrontation. A Study in Treaty Making, Leyden: Sijthoff, 1973 and H.
Hesse, Die Landfrage und die Frage der Rechtsgültigkeit der Konzessionen in Süd-West Afrika, Jena: H. Costenoble, 1906.
156
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p. 39.
157
See E. Hertslet, The Map of Africa by Treaty (3 vols., 3rd edition), London: HMSO, 1909.
158
E. Hertslet, The Map of Africa by Treaty (vol. I, 3rd edition), London: HMSO, 1909, p. 125.The Charter of the British
National African Company (1886) states „that acts of cession of territory to the Company do not mean interference with
native laws or private property,‟ C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making,
Leiden: A.W. Sijthoff, 1973, p. 101.
159
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p.
102. The original treaty used the following words: „ils pourront les vendre ou les louer à des étrangers de n‟importe quelle
nationalité et percevoir les redevances …‟
160
Ibid., p. 103.
37
New Imperialism and the Legal Disentanglement of Dichotomies
First, there were those treaties which transferred sovereignty. In the light of these treaties, the
status of African land, which sovereignty was transferred to a European power, could either be
occupied and cultivated land or unoccupied land. Treaties of cession of territory were not supposed to
affect private rights in the ceded territory.161 The European transferee of sovereignty, however, often
claimed to have acquired private property over all unoccupied or non-cultivated land and thus applied
a European legal concept, that of occupatio of res nullius, to a matter of private property. This
constituted a breach of contract because it followed from the nature of the African treaties that no
European agency, be it at the initial stage the explorer or an „African Company‟, which acted on
delegated government powers could acquire or claim private property on the territory in question.
Second, there were the contracts between a European colonizer and an African inhabitant that
transferred private property. These contracts did not imply the transfer of sovereignty.162 In theory, the
two types of agreement – cession treaties transferring sovereign rights and private law contracts – were
clearly distinguishable. However, in practice imperium and dominium were not as distinct as they
seemed to be.
The problem that arose during the European „Scramble for Africa‟ was that private law
contracts of property transfer and international treaties of sovereignty transfer were conferred and used
interchangeable, as can be obtained from many case studies and personal experiences. 163 In other
words, contracts on the transfer of private property of land had in some cases the effect of transferring
territorial sovereignty too. Conversely, the situation of transferring territorial sovereignty by a treaty
sometimes also implied the transfer of private property of land. The question is, however, whether this
interchangeable use of the totally different concepts of private property of land and territorial
sovereignty, or this discrepancy between the black letter of treaties and contracts and their
interpretation and execution in practice, was intended and which consequences could and were
161
However, the new sovereign could, by exercise of legislative power in the territory, alter the regime of private la wand
real property. See C.H. Alexandrowicz, „The Role of Treaties in the European-African Confrontation in the Nineteenth
Century‟, in: A.K. Mensah-Brown (ed.), African International Legal History, New York: United Nations Institute for
Training and Research, 1975, p. 43.
162
These claims are based on the following literature: Generally on treaties between Europeans and Africans, see C.H.
Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973; A.K. MensahBrown (ed.), African International Legal History, New York: United Nations Institute for Training and Research, 1975; G.W.
Gong, The Standard of Civilization in International Society, Oxford: Clarendon Press, 1984; W.E. Hall, A Treatise on
International Law (8th edition), Oxford: Clarendon Press, 1924; E. Hertslet, The Map of Africa by Treaty (3 vols., 3rd edition),
London: HMSO, 1909; F. Sabersky, Der Koloniale Inlands- und Auslandsbegriff, Berlin, 1907; and G.F. de Martens,
Nouveau Recueil General des Traités (Vol. XI, 2nd Series), 1887. On British treaties, see C. Parry and C. Hopkins, The Index
of British Treaties (1101-1968), London: HMSO, 1970; F.D. Lugard, The Rise of an East African Empire (2 vols.), London:
Blackwood, 1893; F.D. Lugard, „Treaty Making in Africa‟, Geographical Journal 1/1 (1893); F.D. Lugard, The Dual
Mandate in British Tropical Africa, London: Blackwood, 1922; M. Crowder, The Story of Nigeria, London: Faber, 1962; and
P.S. Reinsch, Colonial Government, New York: Macmillan, 1926. On French treaties, see E. Rouard de Card, Traités de la
France avec les Pays de l’Afrique du Nord, 1910; and J.D. Fage, Introduction to the History of West Africa, Cambridge:
Cambridge University Press, 1955. On German treaties, see J.M. Mössner, Die Völkerrechtspersönlichkeit und die
Völkerrechtspraxis der Barbareskenstaaten, Berlin: De Gruyter, 1968; F.F. Müller, Deutschland – Zanzibar – Ostafrika
(1884-90), Berlin, 1959; P. Reichard, Deutsch Ost Afrika, Leipzig: Sparner, 1892; H. Hesse, Die Landfrage und die Frage
der Rechtsgültigkeit der Konzessionen in Süd-West Afrika, Jena: H. Costenoble, 1906; C. Stengel, Die Deutsche
Schutzgebiete, Leipzig, 1889; and C. Stengel, Die Rechtsverhältnisse der Deutschen Schutzgebiete, Tübingen/Leipzig, 1901.
163
Ibid.
38
New Imperialism and the Legal Disentanglement of Dichotomies
inferred thereto. In practice, as Alexandrowicz argues, it was „irrelevant how the title holding entity
was classified in one or another doctrine of law as long as it was capable of transferring effectively the
title to another agency and as long as the title related to rights and obligations connected with the
exercise of sovereign power.‟164 African treaties cannot be relegated to the level of contracts of private
rights except as part of a public law transaction. Moreover, contracts of private rights should not be
interpreted as a transfer on the public international law level. In addition to that, in order to maintain
that African agreements were instruments of private law would be tantamount to considering Africa as
terra nullius to which Europeans were able to apply their own systems of law. This would imply the
ignorance of the existence of the traditional network of African political entities. It is, however, a fact
that the public law concept of territorial sovereignty and the private law concept of private property of
land were in several occasions used interchangeable between European powers and African rulers. To
exemplify this confusion of imperium and dominium, Alexandrowicz gives the following case of
German treaties in South West Africa:
“As to German treaties relating to South-West Africa, the treaty with the Ruler of Bethany of the 28th
October 1889 refers in article 4 to a „purchase agreement‟ made by the Ruler on the 25 th April 1883 with
a German merchant from Bremen, F.A.E. Luderitz. By this contract the Ruler sold to the German
purchaser „land situated between 26 Southern latitude and the Orange River up to 20 miles inland with all
rights pertaining to the land.‟165
In first instance, a private law transaction was intended, but article 5 of the treaty stipulates that „the
(German Emperor) recognises the … cession of territory and submits the territory to the protection of
the German Reich and assumes sovereignty over it.‟ In second instance, this seems to be a
transplantation of an acquisition of land to the field of public law. The next Sections will introduce the
relation between imperium and dominium – public versus private law – and will situate these two
concepts in the context of New Imperialism in the nineteenth century.
2.3 Grotius’ perspective on dominium and imperium
By way of introduction, dominium and imperium and their relation will be discussed from the
viewpoint of Grotius. An analysis of the theory of Grotius on the development of dominium serves to
reinforce the existing order of ownership and government by justifying instances of inequality of
ownership which resulted from division or occupation.166 Although he equates dominium, as the power
held by an owner, with the right over things and imperium with the right over persons in his De Iure
Belli ac Pacis (1625) 167 , Grotius does not apply this distinction adequately in his system of
164
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p. 96.
Ibid., p. 99.
166
See M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace, War, and
Justice in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 149.
167
H. Grotius, De Iure Belli ac Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925.
165
39
New Imperialism and the Legal Disentanglement of Dichotomies
argumentation. He distinguishes between original and derivative acquisition and between rights over
corporeal things and rights over persons. The original acquisition of rights over corporeal things takes
place either through division or through occupation. Both imperium and dominium may be acquired
over things belonging to no one by occupation.168 In this respect, only occupation of unoccupied land
is possible.169 On the one hand, imperium that is acquired by a people or by its ruler, extends over
occupied land and over inhabitants residing on the land. A transfer of imperium to subjects or to
foreigners is prohibited. On the other hand, the absolute ownership of private property (privatum
plenumque dominium) over land that is acquired by a people or by its ruler can be transferred to
subjects or to foreigners. Only persons possessed of reason are entitled to acquire absolute ownership
of private property over land. However, even if this dominium over land is transferred to private
persons, a people or its ruler will retain ultimate or residual ownership (dominium generale). In other
words, dominium transferred to private persons is dependent on dominium generale. As a
consequence, if these people abandon their dominium, or if they cease to exist, their land reverts to the
people or its ruler. 170 Thus, foreigners may occupy waste or unused land directly, and acquire
dominium over it.
Derivative acquisition takes place either by an act of will or by operation of law.171 Because
the latter is not relevant in the context of the law of nations and colonialism172, only acquisition by an
act of will, will be discussed. Acquisition by act of will refers to the voluntary transfer of dominium or
imperium and is regulated under natural law and municipal law. According to natural law, only the
holder of dominium is allowed to alienate his right. The requirements for alienation are, firstly, an act
of the will of the giver and his manifestation of this will and, secondly, an expression of the will of the
receiver to accept the offer. With regard to the law of nations, delivery, as a necessary element in most
cases of domestic law, is not required. Imperium can be alienated according to the will of the holder,
but the requirements differ depending on whether the holder is a king or a people.173 In this respect,
Grotius classifies the alienation of imperium into six cases: 1) alienation of imperium in its entirety; 2)
alienation of imperium over a part of a people or withdrawal of a part of a people from the State; 3)
alienation of part of a territory such as uninhabited or deserted land; 4) conditional alienation; 5)
168
Ibid., at II. iii. 4(1) and 19(2).
Ibid., at II. viii. 9(1).
170
Ibid., at II. iii. 19(1) and (3). See M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach
to War. Peace, War, and Justice in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 152.
171
H. Grotius, De Iure Belli ac Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925, at II. vi and vii.
172
Grotius asserted that derivative acquisition by operation of law may take place under the law of nature, the volitional law
of nations, and municipal law. Grotius does not treat municipal law, because it is too varied and because disputes arising
from war cannot be settled by municipal law. Further, it is not clear how the law of nature distinguishes itself from the
volitional law of nations. It is, however, clear that derivative acquisition under natural law extends to constructive payment of
a debt, certain cases of self-help, and inter-State succession. M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.),
A Normative Approach to War. Peace, War, and Justice in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 161.
173
See M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace, War, and
Justice in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 160.
169
40
New Imperialism and the Legal Disentanglement of Dichotomies
alienation of inferior jurisdiction; and 6) alienation of a people‟s hereditary property, specifically, of
the rights to acquire alluvial additions, to levy tax, to confiscate property, etc.174
Besides original and derivative acquisition, Grotius theorizes acquisition under the law of
175
nations.
Causes or grounds for the acquisition of dominium under the law of nations are occupation
of res nullius; treasure trove; alluvion; breeding of animals; specification and blending of materials;
planting, sowing, and building; acquisition of fruits; and delivery. 176 These causes or grounds are
treated as belonging to natural law and are open to variation by municipal law. However, the law of
nations is concerned with the mutual society of nations and incorporates the bond of human society. 177
Additionally, Grotius remarks that this law is common to all nations regardless of time and place. He
mentions only the acquisition of dominium by right of a belligerent in a formal war as a cause for
acquiring dominium under the law of nations.178
The next step is explaining what this theory of Grotius on dominium and imperium implicates
for imperialism, more particular, the acquisition of territory. A short, but clear answer can be given:
Grotius‟ theory holds, in general, that only in the case of occupation of terra nullius, land that belongs
to nobody, or that is wasted or unused, absolute property rights over land could be acquired. It is in the
nature of the law of nations, in the sense of the law of the mutual society of nations, that dominium has
a limited role in this society. Territorial sovereignty or imperium was considered as a separate body
from private property rights and could be acquired on several occasions and in various ways.
Accordingly, the fundamental distinction between public and private law appears from Grotius‟ theory
on imperium and dominium. However, there are critics who have doubts to what extent Grotius
distinguishes clearly between public and private law, or between public and private persons or
capacities.179 A further step concerns the question how these concepts of dominium and imperium have
to be situated in the Age of New Imperialism, in particular, in the theory and practice of acquisition of
territory.
174
H. Grotius, De Iure Belli ac Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925, at II. vi. 3-13. See M.
Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace, War, and Justice in
Hugo Grotius, Oxford: Clarendon Press, 1993, p. 160-161.
175
H. Grotius, De Iure Belli ac Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925, II. viii.
176
M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace, War, and Justice
in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 164.
177
H. Grotius, De Iure Belli ac Pacis (transl. F.W. Kelsey (ed.)), Oxford: Clarendon Press, 1925, at II. viii. 26. See M.
Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace, War, and Justice in
Hugo Grotius, Oxford: Clarendon Press, 1993, p. 165.
178
M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace, War, and Justice
in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 165.
179
Yanagihara is one of these critics. He argues that according to Grotius „a people or its king acquires imperium – in which
is included jus eminens (ultimate or radical title) – and privatum plenumque dominium by their initial occupation of land, and
thereafter the latter right is distributed to private persons individually. Here one may argue that Grotius distinguishes between
imperium and dominium, and between public and private persons. However, this is not necessarily true. Dominium is not
conceived as a merely economic, private-law kind of right. Indeed, imperium and dominium are not clearly distinguished as
legal concepts‟. See M. Yanagihara, „Dominium and Imperium‟, in: O. Yasuaki (ed.), A Normative Approach to War. Peace,
War, and Justice in Hugo Grotius, Oxford: Clarendon Press, 1993, p. 169.
41
New Imperialism and the Legal Disentanglement of Dichotomies
2.4 Imperium, dominium and New Imperialism connected
At the end of the nineteenth century and the early twentieth century New Imperialism reigned supreme
at the African continent. As has been indicated above, European State powers concurred in the
„Scramble for Africa‟ in order to acquire territory. The acquisition of territory mainly occurred by
occupation and especially by treaties of cession. This acquisition of territory was aimed at the transfer
of sovereignty over the territory. Besides the transfer of territorial sovereignty by treaties, the transfer
of absolute title to property of land180 took place between European private persons and non-European
parties. Here a clear and strict distinction between imperium and dominium has to be taken into
account, as theorized by Grotius. However, there is evidence in the form of doctrinal studies, that in
the practices of treaty making and concluding of contracts and agreements, the two concepts of
dominium and imperium were conferred and used interchangeable. In other words, contracts on the
transfer of private property of land had in some cases the effect of transferring territorial sovereignty
too. Conversely, the situation of transferring territorial sovereignty by a treaty sometimes also implied
the transfer of private property of land. In this light, it is important to have a closer look at the separate
concepts of imperium and dominium in order to research to what extent this interchangeable use took
place and to find out to what extent these practices were illegitimate. In addition, research on the
consequences, available remedies and sanctions in the case of illegitimacy has to be done.
For the moment, a concise discussion of the contemporary doctrine on the relation between the
exercise of sovereignty and native property will suffice. Lindley is very clear and short on this point:
„Sovereignty and property being distinct and different entities, there is no necessary reason why
circumstances that affect the one should have any influence upon the other‟. 181 In the case of
protectorates, the transfer of the external sovereignty only does not entitle the protecting power to deal
with the property within the protected territory. As regards full sovereignty over territory passes, in
ancient times, conquest was the recognized mode of extending sovereignty. The accepted principle
was that conquered peoples were left without rights of any sort, i.e. that property passed with
sovereignty too.182 However, in the modern times of the nineteenth century, the rule is
„that, whatever the degree of development of the territory concerned, privately owned property within a
region which has been acquired by conquest or cession remains unaffected by the transfer of sovereignty
unless and until the new sovereign brings about some alteration in its condition by means of his municipal
180
See generally on the private right to property of land R.C. Ellickson, „Property in Land‟, Yale Law Journal 102 (19921993), pp. 1315-1400. See also T.R.G. van Banning, The Human Right to Property, Antwerpen / Oxford / New York:
Intersentia, 2002 and D. Lea, Property Rights, Indigenous People and the Developing World, Leiden: Martinus Nijhoff, 2008.
For the history of the right to property in Africa, see M. Chanock, „A Peculiar Sharpness: An Essay on Property in the
History of Customary Law in Colonial Africa‟, Journal of African History 32 (1991), p. 65-88
181
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 337.
182
Ibid. Lindley adds that „the well-known rule of Roman Law was that the movables of an enemy were res nullius; and that
the land taken in war was considered to be the property of the Roman State, although in some cases the previous owner of the
land was allowed to retain a small portion of it honoris causa.‟
42
New Imperialism and the Legal Disentanglement of Dichotomies
law. In the case of relatively advanced territory, the property affected comprises not only land and
movables, but contracts and other incorporeal property.‟183
In respect to „backward‟ territory, Lindley admits that „the form of property that comes into question is
usually only land,‟ which is, however, held and utilized „under a variety of conditions.‟184 He gives the
examples of occupied lands by hunting or nomadic tribes and lands which are cultivated by „settled
communities under a system of individual proprietorship.‟185
Because the conditions under which property is held among non-European peoples are of a
wide variation, any rule that is to apply to all cases will have to be in broad terms. Nevertheless, while
it is in the power of the sovereign to deal with and regulate native property of land on territory over
which he acquired full dominion, it is the rule in modern practice „to respect individual rights of
property, and to deal with communally-held lands on the footing that land must be left to the natives in
such quantities and of such quality as, in all the circumstances of their condition, is sufficient to enable
them to maintain a reasonable standard of subsistence.‟186 Lindley further argues that, where large
areas are occupied by wandering tribes living from hunting and grazing cattle, those tribes may be
rehabilitated within reservations, provided the land left to them, and any other compensation given
them, are sufficient in all the circumstances for their needs. The remainder of the land may be taken by
European settlement or exploitation. If the native people have reached a more settled stage of
development, the reservation system is usually inapplicable, and land required for settlement or other
purposes must be purchased for a fair consideration. In this respect, „it is legitimate and desirable for
the sovereign to secure himself the exclusive right of pre-emption over such native lands as the owners
may be prepared to sell.‟187 Steps should be taken to prevent the natives from „being despoiled of land‟
that has been reserved for them or that is otherwise necessary to their existence and well-being. Where
reserved or other lands is in the hands of natives, this should not be expropriated, unless they are
essential to execute the policy of the government of the European settlement or exploitation, or are
required for public utility aims. This could be the case only if adequate compensation was given to the
native peoples, including other lands equally suitable in all respect of their needs. Under the full
disposal of the sovereign are vacant and unreserved lands. The sovereign is allowed to reserve to
himself the minerals in or under native or settled lands, and the right to authorize and regulate their
exploitation.
183
Ibid., p. 337-338.
Ibid., p. 338.
185
Ibid.
186
Ibid., p. 353.
187
Ibid.
184
43
New Imperialism and the Legal Disentanglement of Dichotomies
Lindley discarded these rules on the basis by analysing doctrinal opinions 188 , case law,
statements by judges, reports of arbitrage committees and state practice.189 He ends by saying that „it
would perhaps be going too far to say that these rules are already rules of International Law.‟190 He
refers to the first edition of Oppenheim‟s International Law (1905) in which was considered that rules
protecting native property might properly rank as such, but in the second edition of 1912, this
statement was modified. Lindley asserts, however, that it is difficult to see how these „duties of
trusteeship‟ can be properly performed „unless the rules which recognize native rights are in substance
observed‟. In conclusion, he emphasizes that these rules are generally adopted in modern colonial
practice, so that, „if all of them have not yet acquired a full legal sanction, violation of any of them
would be a departure from well-established usage.‟191
Although, these rules on the separateness of territorial sovereignty and the absolute right (and
protection) of private property of native lands are not international law stricto sensu, from the analysis
of Lindley it can be obtained that these rules were not only based on moral behaviour. Private property
of land and territorial sovereignty are totally different levels of discourse in the context of a passive
State; territorial sovereignty does not interfere with private property of land; imperium can coincide
with dominium. This analysis and conclusions seem not to be corresponding with the practice of treaty
making at the end of the nineteenth and early twentieth centuries in which dominium and imperium are
evidently used interchangeable and conferred. In other words, there seems to be a discrepancy between
theory and practice: on paper, in the form of (written) treaties, the distinction between dominium and
imperium was taken as a general rule of law, on the other hand, the execution of and living up to
treaties took this separateness for granted. Moreover, from this analysis it becomes clear that legal and
political interests do not always go together. Legally seen, territorial sovereignty and private property
of land are totally different institutes. In contrast, the political interests of the European colonial
powers went beyond legal rules when invading and appropriating the African continent. During the
Age of New Imperialism, European colonial powers were actively involved in the issue of private
property of land and the division of the territory in the context of treaty making between European
powers and African rulers. It followed from the nature of the African treaties that no European agency,
be it at the initial stage the explorer or African company, which acted on delegated government powers
188
He quotes for example T.A. Walker, The Science of International Law, London: Clay, 1893; H.S. Maine, International
Law: The Whewell Lectures of 1887 (2nd edition), London: John Murray, 1915; E. de Vattel, The Law of Nations or the
Principles of Natural Law Applied to the Conduct and to the Affairs of Sovereigns (transl. C.G. Fenwick in The Classics of
International Law), Washington: Carnegie Institution, 1916 (1758); and J. Westlake, The Collected Papers of John Westlake
on Public International Law, Cambridge University Press, 1914.
189
These statements, reports, judicial opinions and state practice concern situations of the Indians in the United States and
Canada, and native peoples in Southern Rhodesia, Fiji, Lagos, (Belgian) Congo, Australia and New-Sealand.
190
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 353.
191
Ibid.
44
New Imperialism and the Legal Disentanglement of Dichotomies
could acquire or claim private property in the land in question. 192 The status of African land in
transferred State territory was either occupied and cultivated land or unoccupied land. The European
transferee of sovereignty, however, often claimed to have acquired property over unoccupied or noncultivated land.193 The problem that arose during the European „Scramble for Africa‟ was that private
law contracts and international treaty law were conferred and used interchangeable. However, the two
types of agreement are clearly distinguishable. African treaties cannot be relegated to the level of other
private rights except as part of a public law transaction.194 To maintain that African agreements were
instruments of private law would be tantamount to considering Africa as terra nullius to which
Europeans were able to apply their own systems of law. This would be to ignore the existence of the
traditional network of African political entities. It is, however, a fact that the public law concept of
territorial sovereignty and the private law concept of private property of land were in several occasions
used interchangeable in the context of treaty making between European powers and African rulers.
Several treaties between European powers and African rulers contained provisions in which a
transplantation of an acquisition of land to the field of public law is accomplished, and there were
treaties in which the transfer of territorial sovereignty implicated the transfer of property rights over
land too. And, therefore, these treaties form the place where dominium and imperium clash or where
the borders between the concepts become blurred or permeable.
However, with this determination of the confusion of territorial sovereignty and the private
right to property over land, as done mainly by Alexandrowicz, many issues remain untouched, which
can be summarized by the following two questions: Does the breach of contract by the interchangeable
use of territorial sovereignty (imperium) and private property of land (dominium) in the framework of
treaty-making practice between European colonial powers and African rulers in the Age of New
Imperialism (1870-1920) have consequences and available remedies according to the concluded treaty
or contract, or beyond its provisions, in international law? If so, which implications does this have
with regard to / how does this relate to the legal responsibility of former colonial State powers?
Profound research has to focus on the rights and duties of both of the parties of the concluded treaties
and on available remedies and enforcement mechanisms. These findings have to be linked to the
provision of possibilities and solutions in the recent debate on responsibility for the past wrongs of
colonialism. If it is possible to consider the acts of conclusion and execution of cession treaties at the
end of the nineteenth century illegitimate, it should be researched whether remedies were and still are
available to hold entities or States responsible, or to punish them. Responsibility for past wrongs
should close an unforgettable Age in order to make progression in recent times possible. In addition to
192
C.H. Alexandrowicz, The European – African Confrontation. A Study in Treaty Making, Leyden: A.W. Sijthoff, 1973, p.
99. See also J.F. Hart, „Colonial Land Use and Its Significance for Modern Takings Doctrine‟, Harvard Law Review 109
(1996), pp. 1252-1300.
193
C.H. Alexandrowicz, The European – African Confrontation. A Study in Treaty Making, Leyden: A.W. Sijthoff, 1973, p.
99-100.
194
Ibid., p. 97.
45
New Imperialism and the Legal Disentanglement of Dichotomies
this theory on responsibility for the interchangeable use of imperium and dominium, it should be
analyzed too which consequences have to be attached to the practical confusion of imperium and
dominium – public and private law – for these institutions in general. Alexandrowicz and his
successors did not address the question what effects this confusion had and still has on the relation
among private individuals and between private individuals and the State. Further research should make
the distinction between private property and sovereignty more clear and explicit, and even redefine the
concepts in order to be adapted and applicable in current times.
46
New Imperialism and the Legal Disentanglement of Dichotomies
3. Conclusion and remarks for further
research
At the beginning, the underlying thesis raised many questions in the context of the law of nations with
regard to the acquisition of and title to territory and the involved parties in the Age of New
Imperialism (1870-1920). Several dichotomies took our hand and guided us to the answers. Central
were the dichotomies of naturalism versus positivism, civilized versus uncivilized, European versus
non-European, imperium versus dominium, public versus private law, theory versus practice, and legal
versus political arguments. In this legal disentanglement, it has been showed that all dichotomies are
not always as black and white as they seem to be. They all more or less have their freedoms and limits,
strengths and weaknesses, and are dependent of the particular circumstances in which they have to
function. Sometimes they even show not to be oppositions as such, like the relation between
naturalism and positivism.
In the nineteenth century, the focus of European States was no longer on just maximizing
power and profits by extending markets for the mother country by monopolizing trade. A political
dimension was added by the belief of Europeans that they had a „responsibility to promote civilization
and institute good government in the countries under their imperial authority.‟195 In the context of
international relations, the expansion of colonial empires was the defining feature of the second half of
the nineteenth century. Modern doctrine emphasizes the opposition of naturalism and positivism. It
unjustly reads a strict dualism regarding naturalism and positivism between the writers of the
seventeenth, eighteenth and nineteenth centuries. Traditional, positivists are styled as opponents of the
natural lawyers because of their alleged rejection of natural law and justice. However, as noted by
Lesaffer196, in reality most authors on the positive law of nations „acknowledged the existence and the
relevance of natural law and justice and even gave them a place in their system, but they simply had
their focus elsewhere.‟
Two different, but interrelated and interdependent worlds existed in the nineteenth century. On
the one hand, a European and civilized world was constructed. This order was one in which States had
a tolerating mission in respecting each other‟s sovereignty and territorial integrity. On the other hand,
a non-European and uncivilized world was distinguished. The civilization mission in the positive sense
of bringing European values and instituting good governance, or, in the negative sense of assimilating
non-European people, was the central activity in this world. In other words, European international
195
E. Keene, Beyond the anarchical society: Grotius, colonialism and order in world politics, Cambridge: Cambridge
University Press, 2002, p. 78.
196
R.C.H. Lesaffer, „The Classical Law of Nations (15th – 18th centuries)‟, 2010, available on: <
http://ssrn.com/abstract=1594444 >, p. 27.
47
New Imperialism and the Legal Disentanglement of Dichotomies
law came to „cover, though not apply to, the African continent as a quiet companion of imperialistic
diplomacy and colonialism.‟197 This dichotomy runs as the scarlet thread throughout the whole theory
on colonisation. This is especially the case in the theories and practices of acquiring territory on the
African continent. As a consequence, this dichotomy in sovereignty doctrine answers in first sight and
the questions of how to legitimize the transfer of African territories or the sovereignty of African
„tribes‟ or their „chieftains‟ to the European nations by means of treaties concluded with those rulers
and if those „tribes‟ were not subjects of international law, and lacked the independent sovereign status
in European international law, how they could „lawfully‟ „cede‟ or „transfer‟ their „territories‟ or
„sovereignty‟ to the European States by means of treaties.
This central question is how international law, and thus the doctrine of positivists regarded the
expansion of territory by European powers and encounter of indigenous peoples. To justify this
expansion, the positivist task was to articulate the concepts and methods by which the uncivilized were
to be assimilated into the framework of law. The importance was that „the re-entry of non-European
societies into the sphere of law could now take place on terms which completely subordinated and
disempowered those societies.‟198 In this light, Anghie distinguished four basic and often interrelated
techniques which were used to bring non-European peoples within the scope of international law:
treaty relations between Europeans and non-Europeans, colonization, complying with the standard of
civilization, and protectorates.
When considering treaty practices between Europeans and African peoples, the crucial point
made is that uncivilized non-European entities had an ambiguous position in relation with European
States. On the one hand, African territory was implicitly recognized not to be terra nullius by the
treaty practice between Europeans and non-Europeans before and after the Berlin Conference. On the
other hand, African political entities lacked capability or personality to act as a member of the family
of nations, the international (legal) order. In other words, non-Europeans were at the same time within
and without the realm of international law. This ambiguous situation was purely based on the on the
arbitrariness and interests of European States
The second technique to bring non-European States within the scope of international law is by
way of colonization, implicating that non-Europeans were subjected to European control. Various
methods, derived from Roman law concepts of property, were at hand to effectuate this subjugation.
The law of nations placed „no veto on the acquisition of territory on account of its relative
197
O. Yasuaki, „When was the Law of International Society Born? An Inquiry of the History of International Law from an
Intercivilizational Perspective‟, Journal of the History of International Law 2 (2000), p. 50.
198
A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press, 2005,
p. 66.
48
New Imperialism and the Legal Disentanglement of Dichotomies
backwardness or advancement.‟ 199 It prescribes the mode(s) of acquisition which has (have) to be
employed, according to the condition of the territory, if a valid title is to be obtained. Lindley reviews
the facts which the European States have recognized as giving one of them a full or contingent title
that was good as against the other States, namely papal grants, discovery, effective occupation,
conquest, cession and prescription. 200 The result of these modes of acquisition 201 could be the
establishment of a sphere of influence, a protectorate202, effective occupation, or even annexation,
colonization, or appropriation of territory.
The „Scramble‟ for title to African territory was in first instance not a competition for the
occupation of land by original title but a race for obtaining derivative title. It was seen as a necessity
that European powers acquired derivative titles according to the rules of international law regarding to
negotiation and conclusion of treaties. Here, emphasis has to be put on the fact that Africa could not
have been considered terra nullius. The problem that arose during the European „Scramble for Africa‟
was that private law contracts of property transfer and international treaties of sovereignty transfer
were conferred and used interchangeable. In other words, contracts on the transfer of private property
of land had in some cases the effect of transferring territorial sovereignty too. Conversely, the situation
of transferring territorial sovereignty by a treaty sometimes also implied the transfer of private
property of land. The question is, however, whether this interchangeable use of the totally different
concepts of private property of land and territorial sovereignty, or this discrepancy between the black
letter of treaties and contracts and their interpretation and execution in practice, was intended and
which consequences could and were inferred thereto. In practice, as Alexandrowicz argues, it was
„irrelevant how the title holding entity was classified in one or another doctrine of law as long as it
was capable of transferring effectively the title to another agency and as long as the title related to
rights and obligations connected with the exercise of sovereign power‟.203 African treaties cannot be
relegated to the level of contracts of private rights except as part of a public law transaction. Moreover,
contracts of private rights should not be interpreted as a transfer on the public international law level.
In addition to that, in order to maintain that African agreements were instruments of private law would
be tantamount to considering Africa as terra nullius to which Europeans were able to apply their own
systems of law. This would be to ignore the existence of the traditional network of African political
entities. It is, however, a fact that the public law concept of territorial sovereignty and the private law
199
M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law
and Practice Relating to Colonial Expansion, London: Longmans, 1926, p. 1.
200
Ibid., pp. 123-180.
201
See for an elaboration on the modes of acquisition used on the African continent M.N. Shaw, Title to Territory in Africa,
Oxford: Clarendon Press, 1986.
202
The following States became protectorates: Bechuanaland, Gambia, parts of the Gold Coast, Egypt, Kenya, Morocco,
Nigeria, Northern Rhodesia, Nyasaland, Sierra Leone, Somaliland, Tunisia, Uganda and Zanzibar.
203
C.H. Alexandrowicz, The European-African Confrontation. A Study in Treaty Making, Leiden: A.W. Sijthoff, 1973, p. 96.
49
New Imperialism and the Legal Disentanglement of Dichotomies
concept of private property of land were in several occasions used interchangeable between European
powers and African rulers.
Although, these doctrinal rules on the separateness of territorial sovereignty and the absolute
right (and protection) of private property of native lands are not international law stricto sensu, from
the analysis of Lindley it can be obtained that these rules were not only based on moral behaviour.
Private property of land and territorial sovereignty are totally different levels of discourse in the
context of a passive State; territorial sovereignty does not interfere with private property of land;
imperium can coincide with dominium. This analysis and conclusions seem not to be corresponding
with the practice of treaty making at the end of the nineteenth and early twentieth centuries in which
dominium and imperium are evidently used interchangeable and conferred. In other words, there seems
to be a discrepancy between theory and practice: on paper the distinction between dominium and
imperium was taken as a general rule of law, on the other hand, treaty practice took this separateness
for granted. Moreover, from this analysis it becomes clear that legal and political interests do not
always go together. Legally seen, territorial sovereignty and private property of land are totally
different institutes. In contrast, the political interests of the European colonial powers went beyond
legal rules when invading and appropriating the African continent. Several treaties between European
powers and African rulers contained provisions in which a transplantation of an acquisition of land to
the field of public law is accomplished, and the other way around. And, therefore, these treaties form
the place where dominium and imperium clash or where the borders between the concepts become
blurred and permeable. As a consequence, the discussed dichotomies are not as evident as they look.
The next questions, which regard the prospects of the future and which need profound
research, is whether the breach of contract by the interchangeable use of territorial sovereignty
(imperium) and private property of land (dominium) in the framework of treaty-making practice
between European colonial powers and African rulers in the Age of New Imperialism (1870-1920)
have consequences and available remedies according to the concluded treaty or contract, or beyond its
provisions, in international law? If so, which implications does this have with regard to / how does this
relate to the legal responsibility of former colonial State powers? To conclude this thesis, it should be
mentioned why this question referring to remedies, responsibility and maybe even compensation has
to be posed? In other words, why is it relevant to answer this question? The urgency to answer this
question will be explained in the following Sections.
The World Conference Against Racism, Racial Discrimination, Xenophobia and Related
Intolerance (WCAR), was held at the Durban International Convention Centre in Durban, South
Africa, under the auspices of the UN from 31 August until 8 September 2001. The main theme was the
question of reparations for grave human rights violations in the past. Two issues were at stake, namely
50
New Imperialism and the Legal Disentanglement of Dichotomies
the legacy of slavery and the exploitation and degradation of native populations during the colonial
era.204 Although these are wrongs that reach far back into history, they have a lingering impact on the
present. Most former colonies „remain severely disadvantaged in the current world order.‟205 In other
words, the question of reparations is about addressing current global inequalities; the effects of the
past persist and directly affect the present. The closing Declaration of the WCAR contained rhetoric
that satisfied the African group, without a clear responsibility for reparations on the side of former
colonial States. During the discussions on reparations for colonization, it became obvious that the
during the discussion two blocks emerged: on the one hand, Western European States and the United
States and, on the other hand, the African States, supported by Asia, Latin America, and the
Caribbean. Several African States called for reparations for their colonization and even accused the
European States of crimes against humanity with regards to slavery. The Declaration determined in
paragraph 14 that the participating States
„… recognize that colonialism has led to racism, racial discrimination, xenophobia and related intolerance,
and that Africans and people of African descent, and people of Asian descent and indigenous peoples were
victims of colonialism and continue to be victims of its consequences. We acknowledge the suffering
caused by colonialism and affirm that, wherever and whenever it occurred, it must be condemned and its
reoccurrence prevented. We further regret that the effects and persistence of these structures and practices
have been among the factors contributing to lasting social and economic inequalities in many parts of the
world today.‟
Recapitulating, it was recognized that colonialism caused a lot of distress to native populations and
that it had to be prevented in the future. Additionally, regret was expressed for the lasting social and
economic inequalities in many parts of the world nowadays, as a consequence of colonization. This is
all what was declared on the issue of colonization and its consequences. No word was dedicated to
legal responsibility, or reparations. This discussion still persists; the status quo of the discussion still
reflects the positions in the „Durban debate‟. However, many questions are left unanswered: Was
colonization in itself illegitimate? Are there grounds in contemporary law to held former colonial
powers responsible for the acts of colonization? Who is responsible for past wrongs and in what way?
What forms of relationship can be attributed to subsequent generations of native populations which
suffered the colonial wrongs, and what degree of responsibility can be attributed to present day States?
Is recognition of wrongs and/or regret enough? Or should there be legal responsibility, liability, and
reparations for the act of colonization and its consequences? Further research will touch upon these
unanswered questions, will contribute to the „Durban debate‟ and will even (try to) solve the impasse
on colonization and responsibility. The research project of which this thesis is part, will examine and
204
G. Ulrich, „Introduction: Human Rights with a View to History‟, in: G. Ulrich and L. Krabbe Boserup (eds.), Human
Rights in Development. Reparations: Redressing Past Wrongs, The Hague/London/New York: Kluwer Law International,
2003, p. 1.
205
Ibid.
51
New Imperialism and the Legal Disentanglement of Dichotomies
analyze the treaty-making practices between European colonial powers and African rulers to provide
legal grounds (breach of contract) to held former colonial powers responsible for violation of the law
during the colonization of Africa. Consequently, the main purpose of the research project is to proof
that colonization in itself is an illegal act.
In addition, an understanding and awareness of imperialism is insurmountable in order to
overcome and prevent future ethnic and border conflicts in relation to title to territory. Imperialism as
a constitutive element for international law and order206, in the sense of a civilizing mission, imposes
social, economic, legal and cultural ideas and customs on „uncivilized‟. Trends of imperialism are, for
example, the Westphalian concept of sovereignty, which served for the expansion of the international
society, the waves of (de-)colonization, the emergence of international organizations like the League
of Nations and the United Nations, the „war on terror‟, the current debate on humanitarian intervention
and the universalizing motion of human rights. 207 Therefore, imperialism is not an issue of
colonization, but is an ongoing movement of international law with many appearances. Anghie argues
that the use of international law to further imperial policies is a persistent feature of the discipline.
„The civilizing mission, the dynamic of difference, continues now in this globalised, terror-ridden
world, as international law seeks to transform the internal characteristics of societies, a task which is
endless, for each act of bridging generates resistance, reveals further differences that must in turn be
addressed by new doctrines and institutions.‟208 The underlying research with regard to colonialism is
meant to gain understanding of imperialism in general, in order to anticipate on recent and future
trends of imperialism.
In this respect, it is especially important to inquire treaty negotiations and conclusions in the
Age of New Imperialism and to enquire a deep understanding of the positions and stances of both
African and European parties. In this, the emphasis has to lie on the mutuality of attitude
understanding and equality. Up till now, research was focused on how members of the European
international system or order regarded the subjects of the non-European world. However, the question
of how the non-European peoples conceived Europeans at the end of the nineteenth century has to be
raised. How was the treaty practice perceived, understood and explained by Africans? Further research
has to serve the enhancement of the effectiveness of treaty negotiations and conclusions between
206
See A. Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press,
2005; and T.O. Elias, „International Relations in Africa: A Historical Survey‟, in: A.K. Mensah-Brown, African International
Legal History, New York: United Nations Institute for Training and Research, 1975, pp. 87-103.
207
A. Anghie, „The evolution of international law: Colonial and postcolonial realities‟, Third World Quarterly 27/5 (2006),
pp. 739-753.
208
Ibid., p. 751.
52
New Imperialism and the Legal Disentanglement of Dichotomies
Western and African parties or States nowadays by considering „the African perspective‟. It has to be
avoided that the same mistakes will be made as were made at the end of the nineteenth century.209
Moreover, the relation between territorial sovereignty and private property of land has to be
explained more elaborately. This relation is subjected to the changes of contemporary society and,
thus, has to be flexible to keep up to date. Research has to aim for the redefinition of the concepts of
dominium and imperium and their relation in order to maintain the relevance in modern times of the
distinguished concepts and their interrelatedness. The results of the further research has to contribute
to the understanding of past and present conflicts between States, States and civilians, and between
civilians on the basis of the concepts of State territory based on sovereignty and private property of
land.
209
See for instance I. Brownlie, Treaties and Indigenous Peoples (The Robb Lectures, 1991), Oxford: Clarendon Press, 1992.
See also W.J.M. van Genugten, „Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and
the Interaction of Legal Systems‟, American Journal of International Law 104/1 (2010), pp. 29-65.
53
New Imperialism and the Legal Disentanglement of Dichotomies
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59
New Imperialism and the Legal Disentanglement of Dichotomies
Appendix
Chronologies 1870-1912
Source: Thomas Pakenham, The Scramble for Africa, 1876-1912, London: Abacus, 2009, pp. 681-694.
Before 1870:
Egypt, Sudan
and Northern
Africa
1798: Napoleon
takes Egypt, but
French evacuate
troops after
British victory at
Alexandria
(1801)
1805-47:
Muhammad Ali
master of Egypt
1820-2:
Muhammad Ali‟s
troops conquer
Sudan, in search
of slaves and gold
1823: Khartoum
founded
1830: French
capture Algiers
1848-54: Abbas I
Khedive of Egypt
1854-63: Said
Khedive of Egypt
1854: Said grants
Suez canal
concession to
Ferdinand de
Lesseps
1863-79: Ismael
Khedive of Egypt
1869:
Inauguration of
Suez Canal
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1787: British
settlers, including
freed slaves,
establish colony
at Sierra Leone
1816: Gambia reoccupied by
British after
French
withdrawal
1860: Al Haj
Umar leaves
Senegal to French
1861: US
recognizes
Liberia, founded
for free slaves
1861: British
occupy Lagos
1862: Al Haj
Umar conquers
Segu
1863: French
declare
protectorate over
Porto Novo, on
coast of Dahomey
1864: Al Haj
Umar killed at
siege of
Hamdallahi,
succeeded by
Sultan Ahmadu
1866: French
acquire posts on
Guinea coast
1868: French
protectorate
treaties on Ivory
Coast
1853-6:
Livingstone‟s
second
expedition;
crossing of Africa
and discovery of
Victoria Falls
1858-9: Burton
and Speke
discover Lake
Tanganyika.
Speke discovers
Lake Victoria
1858-61:
Livingstone‟s
third expedition:
discovery of Lake
Nyasa
1860-3: Speke
and Grant explore
Lake Victoria and
identify it as main
source of White
Nile
1864: Baker
discovers Lake
Albert
1866: Turkey
grants Suakin and
Massawa to
Egypt
1867-8: British
expedition under
Napier to rescue
hostages taken by
Ethiopian
Emperor
Theodore
1868 (April 1113): Napier
captures
Magdala.
Theodore
commits suicide
1795-1803:
British
occupation of
Cape Colony,
captured from the
Dutch East India
Company
1806: Second
British
occupation begins
1814: British rule
confirmed by
Treaty of Paris
1820: British
settlers land in
Eastern Cape
1820-34: The
Mfecane
(„crushing‟)
establishes Zulu
kingdom as the
leading African
power in South
Africa
1835: Beginning
of Great Trek
across Orange
and Vaal rivers
1838: Dingane
and Zulus kill
Piet Retief and
Voortrekkers in
Natal
1838 (16
December): Boers
beat Dingane at
Battle of Blood
River
1842: British take
Natal (annexed
1845)
1849-50:
Livingstone‟s
first expedition
and discovery of
Lake Ngami
1852: Sand River
Convention
confirms
Transvaal‟s
independence
1807: Slave trade
abolished
throughout
British Empire
1834: Slavery
abolished
throughout
British Empire
1848: Slavery
abolished
throughout
French colonies
1865: Accession
of Leopold II,
King of the
Belgians
1867: Britain
gives Canada
dominion status
1868 (29
February-2
December):
Disraeli‟s first
ministry
1868-74:
Gladstone‟s first
ministry
60
New Imperialism and the Legal Disentanglement of Dichotomies
1854:
Bloemfontein
Convention
confirms
independence of
Orange Free State
1867: Diamonds
discovered at
Hopetown, Cape
Colony
1868: Britain
annexes
Basutoland at
request of King
Moshweshwe
1870-1879:
Egypt, Sudan
and Northern
Africa
1871-3: Baker
extends Egyptian
power in
Equatoria and
negotiates with
Kabaka Mtesa of
Buganda
1874-6: Gordon
succeeds Baker as
Governor of
Equatoria and
pushes Egyptian
empire within
sixty miles of
Lake Victoria
1876-8: Egypt
going bankrupt.
„Dual Control‟ of
British and
French controllers
to supervise
revenue
1878-9: Gordon‟s
war against
slavers when
Governor General
of Sudan
1879 (18
February): Nubar
Pasha and Rivers
Wilson mobbed
in Cairo. Ismael
sacks Nubar
Pasha. (April)
Ismael sacks
Rivers Wilson:
coup against
Powers. (June 25)
At request of
European Powers,
Sultan disposes
Khedive Ismael.
Tewfik succeeds.
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1874: British
declare Gold
Coast, transferred
from Dutch
control in 1868, a
British colony
1874: British
defeat Ashanti.
Wolseley enters
Kumasi (4
February)
1879: George
Goldie founds
United Africa Co.
(later National
Africa Co.)
1871: Livingstone
discovers river
Lualaba,
believing it flows
from the lost
source of White
Nile
1871 (10
November):
Stanley meets
Livingstone at
Ujiji and resupplies him
1873 (1 May):
Livingstone dies
at Chitambo‟s
village, Ilala
1875 (6
November):
Cameron reaches
coast of Angola
after crossing
Africa
1875: Stanley
explores
Buganda, and
sends appeal for
British
missionaries
1875-8: Brazza
explores river
Ogowe and river
Alima
1877 (17
October): Stanley
reaches Boma
after crossing
Africa and
discovering
course of Congo
1879 (4 August):
Stanley begins to
open up Congo
1870: Italian
company takes
over Assab on red
Sea
1872: Ras Kassa
crowned as
Emperor
Yohannes IV of
Ethiopia
1873: Bartle
Frere and John
Kirk, consul at
Zanzibar,
persuade Sultan
to abolish slave
trade
1875 (16
November):
Yohannes defeats
Egyptians at Bay
of Gundet
1876 (7 March):
Yohannes wins
decisive victory
at bay of Gura
1877-8: British
missionaries
establish bases
north and south of
Lake Victoria
1870: Lobengula
succeeds
Mzilikazi as King
of Ndebele
1870: Diamond
rush to
Griqualand West
1871: Kimberley
founded
1871 (17
October): Brtitain
annexes
Griqualand West
to Cape Colony
despite protests of
Orange Free State
1872: Britain
gives Cape
Colony
responsible
government
1873-5:
Langalibalele
affair and trial
1876: Pedi War
bankrupts
Transvaal
1877-80: Frere
High
Commissioner at
Cape Town
1877 (12 March):
Britain annexes
Walvis Bay to
Cape Colony
1877 (12 April):
Shepstone
annexes
Transvaal for
Britain, despite
Boer protests
1877-8: Frontier
War with
1874 (18 April):
Livingstone
buried in
Westminster
Abbey
1874-80:
Disraeli‟s second
ministry
1875
(November):
Disraeli buys
Khedive Ismael‟s
44 per cent
holding of Suez
Canal shares for
Britain
1876: Abortive
London
conference on
South African
Federation
1876 (12-14
September):
Leopold II
sponsors
geographical
conference in
Brussels
1876-7: Leoplod
founds
International
African
Association
1878 (13 June-13
July): Berlin
Congress.
Bismarck offers
France the
Tunesian „pear‟
1878-9: Leopold
forms Comité
d’Etudes du Haut
Congo and enrols
61
New Imperialism and the Legal Disentanglement of Dichotomies
for Leopold
Gcalekas and
Ngqikas
1878 (11
December): Frere
sends ultimatum
to Cetshwayo and
Zulus
1879 (12
January):
Outbreak of Zulu
War. (22 January)
British beaten by
Zulus at
Isandlwana but
survive attack on
Rorkes Drift. (4
July) British win
decisive victory
over Zulus and
Ulundi. (28
August)
Cetshwayo
captured
1879 (28
November):
Wolseley crushes
Pedi and captures
Sekhukhene
Stanley for five
years‟ service
1879: Jules Grévy
President of
France (till 1887)
1879
(November):
Gladstone
denounces
imperialism in
Midlothian
speeches
1880-1882:
Egypt, Sudan
and Northern
Africa
1881 (April):
French army
under General
Bréart invades
Tunisia from
Algeria. (12
May): Treaty of
Bardo by which
French impose
protectorate on
Bey of Tunis. (19
June) Muhammad
Ahmad proclaims
himself Mahdi in
the Sudan. (9
September)
Nationalist coup
in Egypt led by
Arabi Pasha
1881 (June-July):
Risings in south
Tunisia
1882 (January):
Arabi Pasha made
War Minister.
Anglo-French
note sent to
Khedive. (10-12
June) Riots in
Alexandria kill
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1880: Gallieni
negotiates Treaty
of Nango with
Ahmadu, Sultan
of Tukolors (not
ratified)
1880: Cameroon
„kings‟ appeal for
British protection
1880 (10
September):
Brazza signs
treaty with King
Makoko and
founds
Brazzaville. (21
November)
Brazza confronts
Stanley on the
Congo
1881-2: Stanley
signs treaties with
Congo chiefs and
founds
Leopoldville
opposite
Brazzaville
1882 (April):
Stanley launches
En Avant on
Upper Congo
1882-3: Stanley
and Brazza return
to Congo with
new expeditions
1881: French
occupy Obock in
Somaliland
(acquired in
1862)
1882: Italian
government takes
over Assab
1880 (8-15
December):
Transvaal Boers,
under triumvirate
led by Kruger,
meet at
Paardekraal and
decide to hoist
flag of republic
and restore
Transvaal‟s
independence. (20
December) Boers
ambush 94th
Regiment at
Bronkhorst
Spruit. British
garrisons
besieged in
Transvaal
1881: Boers
invade Natal and
repulse Colley‟s
relief column at
Laing‟s Nek (28
January), Ingogo
(7 February) and
Majuba (27
February). Colley
killed. Armistice
1880 (April): End
of Disraeli‟s
(Beaconfield‟s)
second and last
ministry. Start of
Gladstone‟s
second ministry
(till 1885). (23
September) Start
of Jules Ferry‟s
first ministry
1881: Tunisian
debacle
precipitates fall of
Jules Ferry (5
November),
succeeded by
Gambetta (till
January 1882)
1882 (January):
Freycinet‟s first
ministry begins
1882 (6 May):
Murders in
Phoenix Park,
Dublin
1882 (20 May):
Triple Alliance
(Germany,
Austria, Italy)
62
New Imperialism and the Legal Disentanglement of Dichotomies
fifty Europeans.
(11 July) British
fleet bombards
Alexandria. (13,
15 September)
Wolseley‟s army
defeats Arabi at
Tel el-Kebir and
occupies Cairo
and negotiated
peace follow. (3
August) Pretoria
Convention.
Britain restores
independence to
Transvaal subject
to British
„suzerainty‟
1882: Egyptian
debacle
precipitates fall of
Freycinet
1882: Gladstone‟s
government
rejects appeal by
Cameroon „kings‟
1882 (2 June):
Brazza given
hero‟s welcome
on return to Paris.
(19 October)
Brazza meets
Stanley at
Continental hotel,
Paris.
(November)
French Assembly
ratifies Makoko
Treaty
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1884 (November
and December):
Carl Peters signs
first treaties with
chiefs on
mainland
opposite
Zanzibar.
(December)
Death of King
Mtesa, Kabaka of
Buganda,
Mwanga, his
erratic young son,
succeeds
1883 (16 April):
After abolition of
triumvirate,
Kruger elected
President of
Transvaal for first
time
1884 (7 August):
German
protectorate
declared over
Angra Pequena.
(February)
Cetshwayo
expelled from
Zululand, then
(May) Dinizulu,
his son, crowned
as king
1884 (28 August):
London
Convention on
Transvaal omits
British suzerainty
which had limited
Transvaal
independence.
(December) To
block Transvaal‟s
advance to the
sea, Britain
annexes St Lucia
Bay
1883 (21
February): Start
of Ferry‟s second
ministry (till 21
March 1885)
1884 (26
February): AngloPortuguese treaty
shuts mouth of
Congo to Leopold
and French.
Treaty withdrawn
after international
protests
1884 (22 April):
US formally
recognize
Leopold‟s Congo.
French sign preemption treaty
with Leopold.
(July-August)
Abortive London
conference on
Egyptian finance.
Jules Ferry and
Bismarck
continue to
frustrate British
plans
1884 (May):
Gladstone‟s
cabinet sends
Consul Hewett to
sign treaties with
Western African
chiefs. (June-
1883-1884:
Egypt, Sudan
and Northern
Africa
1883 (5
November):
Mahdi annihilates
Hicks Pasha and
10.000 Egyptian
soldiers at Bay of
El Obeid
(Shaykan) and
seizes Kordofan
1884 (18
February):
Gordon reaches
Khartoum with
orders to evacuate
garrison. (12
march) Siege
begins .
(September)
Wolseley leaves
Cairo with
expedition to
rescue Gordon
and garrison of
Khartoum
Western Africa
1883 (7
February):
BorgnisDesbordes lays
foundation of fort
at Bamako, first
French foothold
on Upper Niger.
(April) French
repulse attack on
Bamako fort by
Fabou, brother of
Samori, Malinka
warlord
1883: French sign
treaty with King
Tofa reestablishing
protectorate at
Porto Novo
adjoining
Dahomey. Mattei
fails to sign treaty
for France with
Brass chiefs but
establishes
factory at Nupe
after helping
Emir crush revolt
1884 (June):
Hewett begins
treaty-making trip
to Oil Rivers
1884: Nachtigal
sent by Bismarck
hoists German
flag over Togo (5
Central Africa
63
New Imperialism and the Legal Disentanglement of Dichotomies
July) and over
Cameroon (14
July)
July) British
Protectorate over
the Niger and Oil
Rivers. (15
November):
Berlin conference
on Western
Africa and
Congo. With
Bismarck‟s help
Leopold wins
recognition of his
claims to Congo
1885-1886:
Egypt, Sudan
and Northern
Africa
1885 (17
January): Bay of
Abu Klea. (26
January) Mahdi
takes Khartoum
and massacres
garrison including
Gordon. (22 June)
Death of Mahdi,
succeeded by the
Khalifa. Spain
claims territory at
Rio de Oro
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1886: British
gunboats mount
punitive
expedition against
Brass villages
along Niger after
attacks on ships
of Royal Niger
Co.
1886 (August):
Arab slave traders
attack Congo
Free State
garrison post at
Stanley Falls
1885 (Februari):
Egyptians
evacuate
Massawa and
Italians take over.
(7 August)
German warships
demonstrate at
Zanzibar and
force Sultan to
accept loss of
mainland empire.
(November)
Boundary
commission
meets to decide
frontier between
German and
British „spheres‟.
(November)
Bishop
Hannington
murdered at
Buganda frontier
on orders of
Mwanga. British
occupy Berbera
and Zeila
1886
(September):
Gold rush to
Transvaal begins.
Johannesburg
founded
1885 (17
February):
Bismarck
declares German
protectorate over
part of eastern
Africa to be
administered by
new charter
company founded
by Carl Peters.
(26 February)
Conclusion of
berlin Conference
with general Act
of berlin signed
by the Powers,
including
International
Association. (31
March) Britain
proclaims
protectorate over
Bechuanaland.
(April) Leopold
proclaimed
sovereign of
Congo Free State.
(June) Humiliated
by failure to save
Gordon,
Gladstone‟s
government
resigns.
Salisbury‟s first
ministry begins
1886 (June):
Christian
converts,
Protestant and
Catholic,
martyred in
Buganda
1886: Junker
reaches Mackay
with sos from
Emin Pasha.
(November)
Anglo-German
agreement on
64
1886 (January):
Gladstone returns
to power on a
Home Rule ticket.
(10 July) Goldie
wins charter for
Royal Niger
Company. (July)
New Imperialism and the Legal Disentanglement of Dichotomies
„spheres‟
Defeated by
Liberal split on
Home Rule,
Gladstone
resigns.
Salisbury‟s
second ministry
(till August 1892)
1887-1889:
Egypt, Sudan
and Northern
Africa
1887: Abortive
Convention with
Turkey by which
Britain made
conditional
agreement to
withdraw from
Egypt
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1887: British
deport King Jaja
from Opobo for
challenging
monopoly
exercised by
Royal Niger
Company
1887 (February):
Stanley,
sponsored by
both Leopold and
Mackinnon,
leaves Zanzibar
en route for river
Congo to „rescue‟
Emin Pasha
1887: British
annex Zululand
(to Natal 1897)
1887: SadiCarnot succeeds
Grévy as
President (till
1894). (26 May)
Salisbury gives
royal charter to
Mackinnon‟s
IBEA Company
1889 (May):
Stanley and Emin
leave Equatoria
1889 (10
January): France
declares
protectorate over
Ivory Coast
1887: Mahdists
attack Emperor
Yohannes and
burn Gondar.
Yohannes‟ rival,
King Menelik of
Shoa, deposes
Sultan of Harar
and extends his
kingdom further
into Galla country
1888 (29 April):
Stanley meets
Emin Pasha at
Lake Albert
1888-9: Abushiri
rebellion in
German East
Africa. French
transfer Red Sea
post from obock
to Jibouti. IBEA
lease coastal strip
from Sultan of
Zanzibar and
begins stations on
mainland
1889 (12 March):
Emperor
Yohannes killed
by Mahdists at
Bay of Metema
(Gallabat).
Menelik
proclaims himself
Emperor with
Italian backing. (2
May) Menelik
signs Treaty of
Wichale with
Italians. (6
September)
kabaka Mwanga
deposed in Civil
War. (December)
Stanley and Emin
reach coast at
Bagamoyo.
(OctoberDecember) Carl
Peters eludes
65
1888: Portuguese
refuse transit for
arms needed by
British
missionaries
fighting slavers
on Lake Nyasa.
Portuguese
advance into
interior. Rhodes
and beit
amalgamate
diamond mines at
Kimberley and
form De Beers
Consolidated.
(October) Rhodes
obtains Rudd
Concession from
Lobengula giving
him exclusive
mining rights in
Mashonaland and
Matabeleland. (29
October):
Salisbury gives
royal charter to
Rhodes‟ BSA
Company
1888: Pope Leo
XIII orders
cardinal Lavigerie
to launch crusade
against slavery.
(15 June)
Accession of
Kaiser Wilhelm II
1889: Britain
proclaims
protectorate over
Shire districts
(and all
Nyasaland in
1891)
New Imperialism and the Legal Disentanglement of Dichotomies
coastal blockade,
crushes Masai,
reaches Uganda
(February 1890)
1890-1892:
Egypt, Sudan
and Northern
Africa
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1890-1:
Archinard
captures Segu and
other Tukolor
towns. Bambara
revolt
1891-2; harry
Johnston sent to
Nyasaland as first
Commissioner,
crushes slavers.
Congo State
sends four
expeditions to
Katanga
including Stairs‟
espedition which
kills Msiri at
Bunkeya. Attack
by Van
Kerckhoven on
ivory merchants
1890 (spring):
Carl peters
reaches Uganda
and signs treaty
with Kabaka
Mwanga.
(December)
Lugard, sent to
Uganda by IBEA
Co., forces
Mwanga to
accept new treaty
1890 (17 July):
Rhodes becomes
prime Minister at
the Cape. (JulySeptember)
Rhodes‟ pioneer
column advances
into Mashonaland
and founds
Salisbury (13
September)
1890 (18 March):
Bismarck,
dismissed by
Kaiser Wilhelm
II< replaced as
chancellor by
Caprivi. (24 May)
Mackinnon
„treaty‟ with
Leopold gives
IBEA Co. a
corridor for
missing link from
Cape to Cairo. (1
July) AngloGerman
convention gives
Germany
Heligoland in
return for
Zanzibar, Uganda
and Witu. (2 July)
The Brussels Act.
Conclusion of
conference on
slave trade. (3
July) Publication
of Leopold‟s will
leaving Congo
Free State to
Belgium.
Belgium
advances interestfree loan
1890 (5 August):
Anglo-French
declaration on
West Africa,
giving French
territory from
Mediterranean to
Bight of Guinea,
but securing
Northern frontier
of Nigeria for
Britain.
Archinard attacks
Samori‟s HQ Kan
Kan
1891-2: Hubert
drives him
eastwards
1892
(September):
French crush
King Behanzin of
Dahomey and
(December)
extend
protectorate
1892 (May):
Murder of
Hodister and five
other agents of
Congo State
1892 (23
November):
Dhanis‟ force
repulses Sefu‟s
attack, and drives
thousands of
Sefu‟s men into
London
1891: Lugard
marches to
Equatoria and
enlists Sudanese
left there by Emin
Pasha
1891: Britain
recognizes Italian
protectorate over
Ethiopia. But
Menelik
denounces Italian
claims
1891-3: Wahehe
revolt in German
East Africa
1891 (25
December):
Lugard informed
that IBEA Co.
intend to evacuate
Uganda
1892 (24
January): Lugard,
with Maxim gun,
helps pro-British
Protestants defeat
pro-French
catholics in
Buganda civil
war. Mwanga
flees
1892 (December):
Cabinet send out
portal to report on
66
1891: British
government
agrees that BSA
Co. should extend
operations to
Barotseland (later
northern
Rhodesia).
Portugal, near
bankruptcy,
accepts
Mozambique
frontier imposed
by Britain
1892
(September): First
train from Cape
reaches
Johannesburg and
(December)
Pretoria
1892: Gladstone
defeats Salisbury
in general
election and (18
August) begins
fourth and final
ministry
1892 (28
September):
Rosebery
persuades cabinet
to agree to
postpone
evacuation of
Uganda
1892 (October):
New Imperialism and the Legal Disentanglement of Dichotomies
future of Uganda
Lugard returns to
England and
helps orchestrate
public opinion for
retention of
Uganda
1893-1895:
Egypt, Sudan
and Northern
Africa
1894: Italians
capture Kassala
from Mahdists
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1893 (10 March):
Formal
establishment of
Guinea and Ivory
Coast as French
colonies.
(December)
French defeat
Tuaregs and
capture Timbuctu
1893 (4 march):
Dhanis captures
Nyangwe,
massacres Arabs
and burns down
1893 (10 march):
IBEA Co. gives
up responsibility
for Uganda.
Portal
recommends
retaining it for
Britain
1893 (22 April):
Kruger elected for
third term as
Transvaal
President. (12
May) Natal given
responsible
government.
(October) After
Ndebele raid on
Fort Victoria, DR
Jameson invades
Matabeleland,
defeats
Lobengula‟s
Impis and
captures
Bulawayo (4
November)
1894 (3 march):
After Lords block
second Home
Rule Bill,
Gladstone
resigns. Rosebery
takes over as
Prime Minister.
(24 June)
President SadiCarnot stabbed to
death. Succeded
by CasimirPerier. (October)
Caprivi replaced
by Prince
Hohenlohe.
(December)
Dreyfus
condemned and
sent to Devil‟s
Island
1893-4: Third
Ashanti war
1894 (OctoberNovember):
Lugard signs
treaties with
frontier chiefs.
Decoeur makes
counter-claims
1895 (1 January):
Niger Company
claim protectorate
covers Nikki and
Bussa
1895 (29
January):
Brassmen attack
Niger Co.‟s
station at Akassa
and kill and eat
captives.
(February)
Brassmen‟s revolt
suppressed by
british navy
1893 (22 April):
Capture of
Kasongo
1894 (12 April):
Secret Congo
treaty confirms
Leopold‟s access
to Bahr alGhazal, gives
Britain a Cape-toCairo line. But
after France and
Germany protest,
Britain loses
corridor and
Leopold is only
allowed Lado
enclave
1894 (18 June):
Rosebery
formally makes
Uganda a British
protectorate
1895 (25 March):
Italians begin
invasion of
Ethiopia from
Eritrea. (July)
With collapse of
IBEA Co.,
Rosebery creates
British East
African
Protectorate.
Menelik repulses
Baratieri‟s
advance guard at
Amba Alagi (8
December)
67
1894 (January):
Lobengula dies in
hiding.
(September) To
connect Cape and
Natal, Britain
annexes
Pondoland
1895 (June): To
seal off Transvaal
from sea, Britain
annexes
Tongoland. (July)
Kruger ends
isolation of
Transvaal by
opening railway
from Pretoria and
Johannesburg to
Delagoa bay in
Mozambique
1895 (21 June):
On collapse of
Rosebery‟s
government,
Salisbury begins
third and final
ministry.
Chamberlain is
Colonial
Secretary
1895: Félix faure
succeeds CasimirPerier as
President (till
1899). (29
December) Dr
Jameson launches
the Raid from
bases in cape and
Bechuanaland
New Imperialism and the Legal Disentanglement of Dichotomies
1896-1898:
Egypt, Sudan
and Northern
Africa
1896 (21
September):
Kitchener and
Anglo-Egyptian
army start
reconquest of
Sudan by taking
Dongola
1897 (8 August):
Kitchener
advances to Abu
Hamed
1898 (8 April):
Kitchener crushes
Mahmud and
Mahdist at bay of
Atbara. (10 July)
Marchand reaches
Fashoda, signs
treaty with Dinka
mek, and hoists
French tricolour.
(2 September)
Kitchener
annihilates
Khalifa‟s army at
bay of
Omdurman and
recaptures
Khartoum. (19
September)
Kitchener takes
gunboats down
Nile to confront
Marchand at
Fashoda
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1896 (18
January): Fourth
Ashanti war.
British take
Kumasi and
impose
protectorate
1897 (February):
Congo Free State
column under
Chaltin seize
Lado base on
Upper Nile.
(February)
Dhanis‟ army
mutinies at Ndirfi
and extinguishes
Leopold‟s hopes
of taking over
southern Sudan.
Marchand‟s
column drags
Faidherbe in
sections over
Nile-Congo
watershed
1896 (1 March):
Menelik crushes
Baratieri‟s
invasion force at
bay of Adowa
and captures
4.000 prisoners.
926 October)
Italian treaty with
Ethiopia. Menelik
forces Italy to
recognize
Ethiopian
independence in
exchange for
Italian prisoners,
but agrees to let
Italy keep Eritrea
1896 (2 January):
Jameson and 500
Rhodesian police
surrender to
Transvaal
burghers at
Doornkop. (6
January) Rhodes,
implicated in the
Raid, forced to
resign as Prime
Minister of Cape
Colony. (24
March)
Withdrawal of
Rhodesian police
triggers rising in
Matabeleland.
(June) Shona
rising follows.
(October) Rhodes
helps negotiate
surrender with
Ndebele Indunas
1896 (3 January):
Kaiser‟s telegram
to Kruger,
congratulating
him on his defeat
of Jameson. (12
March)
Salisbury‟s
government
decides to seize
opportunity
provided by
Italian defeat at
Adowa by
beginning reconquest of
Sudan. (May)
Collapse of
Anglo-French
talks on Niger.
(June)
Marchand‟s
expedition leaves
France with
orders to advance
to Nile-Congo
watershed and
beyond
1898 (AprilMay): Lugard and
WAFF contest
French claims on
western frontier
of Nigeria. British
and French close
to blows. (14
June) Salisbury
negotiates AngloFrench agreement
on West Africa
and ends Niger
crisis. (29
September)
French capture
Samori and exile
him to Gabon
1897 (20 March):
French treaty
with Ethiopia.
Delclassé hopes
to use it as a base
for advance on
Nile but two
French
expeditions fail to
reach Fashoda via
Ethiopia. (14
May) British
treaty with
Ethiopia; Britain
concedes part of
Somaliland but
gets nothing in
return. (JulyAugust) Mwanga
tries to regain
Ugandan throne
but is forced to
flee. (September)
Mutiny of
Sudanese troops
in Uganda
cripples
MacDonald‟s
force
68
1897 (August):
Sir Alfred Milner
appointed High
Commissioner
1898 (February):
Kruger elected
President of the
Transvaal for
fourth term
1897: Crucial
telegrams
withheld from
London enquiry
into Raid, so
Joseph
Chamberlain
cleared of
collusion with
Rhodes and Beit
1898 (August):
Colonel Henry
admits forging
documents in
Dreyfus Affair,
and second
Dreyfus crisis
splits France. (18
September-3
November) Acute
phase of Fashoda
crisis. Brisson‟s
government in
Paris collapses,
replaced by
Dupuy‟s. unable
to face a naval
war with Britain,
French
government
agreed to climb
New Imperialism and the Legal Disentanglement of Dichotomies
down and order
Marchand to
evacuate Fashoda
1899-1902:
Egypt, Sudan
and Northern
Africa
1899 (January):
British and
Egyptian
governments
create
condominium
over Sudan. (24
November)
Wingate kills
Khalifa at
Mahdists‟ last
stand in Kordofan
1902: Menelik
accepts AngloEgyptian treaty
by which he
abandons claim to
Upper Nile
1902-3: Sultan of
Morocco unable
to check growing
disorder
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
2899 (21 March):
Anglo-French
agreement
excludes the
French from Bahr
al-Ghazal and
Darfur but leaves
them free hand
further west. (9
August)
Chamberlain
negotiates buyout of Goldie‟s
Niger Co. and
replacement by
British
protectorate
1899: French
grant concessions
to international
rubber companies
in French Congo
1899 (June):
Mwanga and
Kabarega both
captured and
exiled to
Seychelles. (from
September)
British and Italian
Somaliland raided
by selfproclaimed
Mahdi („Mad
Mullah‟)
1899 (24 March):
Transvaal
Uitlanders send
Queen Victoria
petition for
British
intervention to
redress political
and economic
grievances. (31
May-5 June)
Abortive
negotiations at
Bloemfontein
between Milner
and Kruger. (11
October)
Outbreak of war
on expiry of
Kruger‟s
ultimatum. (14-16
October) Boers
begin siege of
kekewich and
Rhodes at
Kimberley, and
Baden-Powell at
Mafeking. (30
October)
„Mournful
Monday‟.
Nicholson‟s Nek
and bay of
Ladysmith. (2
November) Start
of siege of
Ladysmith
1899 (16
February): death
of President
Faure. Succeeded
by Loubet (till
1906). (October)
Hohenlohe
resigns German
chancellorship.
Replaced by
Bülow
1900 (MarchNovember):
Rising in Ashanti
suppressed and
besieged british
garrison relieved.
(May) French
seize oases south
of Morocco,
formerly
controlled by
Sultan
1901: British
annex Ashanti to
Gold Coast
1901 (December):
First train on
Uganda railway
reaches lake
Victoria from
Mombasa and
opens up country
for development
1902 (February):
French
government
agrees to
subsidise JiboutiAddis Ababa
railway
1902: land grant
of 500 aquare
miles in
highlands near
Nairobi starts
large-scale white
settlement
1899 (23
November):
Boers abandon
raid southwards
as British begin
attempt to relieve
Kimberley and
Ladysmith. (1015 December)
Black Week.
Gatacre‟s mishap
at Stormberg.
Methuen‟s
repulse at
Magersfontein,
Buller‟s first
69
1900 (AugustSeptember):
Salisbury wins
„Khaki Election‟.
War divides
liberals,
consolidates
Unionist majority
1901: Belgium
decides not to
exercise option to
take over Congo
from Leopold.
(22 January)
Death of Queen
Victoria. Edward
VII succeeds
1902 (15 May):
Protest meeting in
mansion House,
London against
Congo atrocities
1902 (July):
Salisbury retires
and Balfour takes
over as Prime
Minister
New Imperialism and the Legal Disentanglement of Dichotomies
reverse: Colenso
1900 (24
January): Buller‟s
second reverse:
Spion Kop. (11
February) Roberts
launches great
flank march. (15
February) French
relieves
Kimberley. (27
February)
Surrender of
Cronje at
Paardeberg. (1427 February)
Buller finally
relieves
Ladysmith. (13
March) Roberts
takes
Bloemfontein. (17
may) Mahon and
Plumer relieve
Mafeking. (28
May) Roberts
annexes Orange
Free State. (31
May) Roberts
captures
Johannesburg and
(5 June) Pretoria
1900 (27 August):
Roberts‟ and
Buller‟s armies
join hands and
win apparently
decisive victory at
Bergendal. (19
October) Kruger
sails for Europe.
(25 October)
Annexation of
Transvaal
proclaimed at
Pretoria. (29
November)
Kitchener
succeeds Roberts
as C in C but
Boers launch
guerrilla war
1901 (10-28
February): De
Wet invades Cape
Colony. (3
September)
Smuts invades
cape Colony. (26
September) Botha
attacks forts in
Natal
70
New Imperialism and the Legal Disentanglement of Dichotomies
1902 (FebruaryNovember):
Successful antiguerrilla drives in
Orange River
Colony and
Transvaal. (6
May) Zulus attack
Boers at
Holkrantz. (31
May) Final
meeting at
Vereeniging.
Peace signed at
Pretoria
1903-1906:
Egypt, Sudan
and Northern
Africa
1905 (31 May):
Offended by the
Entente, Kaiser
Wilhelm II lands
at Tangier and
precipitates first
Moroccan crisis
1906 (JanuaryApril): Germans
attend Algeciras
conference,
ending Moroccan
crisis
Western Africa
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1903: Lugard
makes British
masters of North
Nigeria by
conquering Kano
(3 February) and
Sokoto (15
March)
1903 (June):
House of
Commons debate
Congo atrocities
and government
agrees to confer
with signatories
of Berlin Act to
„abate evils‟.
Consul Casement
ordered to
investigate
situation in
Congo
1905 (July):
Maji-Maji rising
begins with
attacks in
Matumbi, then
spreads to
isolated German
East Africa south
of Dar-es-Salaam.
Murder of bishop
Spiss, two priests
and two nuns. (30
August) Germans
repulse attack on
Mahenge. Risings
not co-ordinated.
Governor Götzen
suppresses
rebellion by
starving out
rebels
1904 (12
January): Herero
rising begins in
German SouthWest Africa with
attack on main
garrisons
1904 (8 April):
Entente Cordiale
between Britain
and France ends
twenty years‟
bitter rivalry;
gives Britain free
hand in Egypt and
France free hand
in Morocco
1906: Lugard
takes violent
measures to put
down Satiru
rebellion in
Sokoto
1904 (February):
Casement report
exposes atrocities
by Congo state
authorities
1905
(November):
Janssens‟ report
confirms Morel‟s
claim that
exploitation is
systematic
1904: Trotha
issues
„extermination
order‟
condemning
20,000 Herero –
men, women and
children – to
death in the
Omaheke
sandveld. (3
October)
Outbreak of
Nama rebellion
1905 (October):
Hendrik Witbooi
dies. End of
Nama rebellion
1905-6: Boer exguerrillas agitate
for restoration of
self-government
in Transvaal and
the Orange Free
State
1905 (29 April):
Brazza arrives in
Brazzaville to
investigate
reports of
atrocities by
officials in
French Congo
1906 (10
February):
Martial law
declared in
Zululand.
1905 (August):
French officials
Toqué and Gaud
71
1906: Dernburg
appointed
Minister for
Colonies.
(December)
Reichstag
dissolved by
Bülow. „Hottentot
Election‟
weakens
Socialists. (5
December)
Balfour‟s
government
resigns.
CampbellBannerman wins
landslide victory
for Liberals, with
slogan „no
Chinese slavery
for South Africa‟
1906 (3 June):
Leopold‟s „royal
letter‟ defying the
Powers to take
the Congo from
him. President
Loubet succeeded
New Imperialism and the Legal Disentanglement of Dichotomies
sentenced to five
years for
atrocities
Ruthless
suppression of
Zulu rebellion
triggered by poll
tax
1906 (May):
Leopold finally
abandons claims
to Bahr al-Ghazal
1906 (December):
CampbellBannerman and
Liberals
„magnanimously‟
give Transvaal
responsible
government
1906 (14
September):
Brazza dies at
Dakar.
by Armand
Fallières. (11
December)
President
Roosevelt
announces US
will help Britain
persuade Belgium
to take over
Congo
1907 (February):
Brazza‟s report
suppressed
1907-1912:
Egypt, Sudan
and Northern
Africa
1911 (2 May):
The French enter
Fez. The Italians
invade Tripoli. (1
July) German
gunboat Panther
reaches Agadir,
precipitates
second Moroccan
crisis. (4
November)
Franco-German
Convention by
which Germany
gives France a
free hand in
Morocco in return
for part of French
Congo
Western Africa
1910: Railway to
Kano completed
Central Africa
Eastern Africa
Southern Africa
Europe, and the
rest of the world
1907-8:
Churchill‟s East
African tour.
Emperor Menelik
paralysed by
stroke
1907: CampbellBannerman gives
self-government
to Orange River
Colony
1907 (April):
Leopold‟s
obstruction over
Congo leads to
fall of Smet de
Naeyer‟s
government; de
Trooz succeeds.
(December)
International
outcry over too
generous terms
for Leopold when
Congo transferred
to Belgium.
Death of Trooz.
Schollaert
succeeds
1908: Railway to
Blantyre opened
1908-9 (12
OctoberFebruary):
Constitutional
Convention in
Durban, then
Cape Town
1909
(September):
British Parliament
passes South
Africa act, despite
protests by
Schreiner and
other champions
of African
political rights
1912 (30 March):
Formal French
protectorate
imposed on
Morocco, with
Spanish Sahara
for Spain. Italians
invade Cyrenaica.
Start of Senussi
War (till 1931)
1910 (31 May):
Union of South
Africa. (15
September) Boers
and Afrikaners
gain control in
Union‟s first
general election.
Botha first Prime
Minister
1908 (8 April):
Asquith succeeds
CampbellBannerman as
British Prime
Minister
1908 (20
October):
Annexation of
Congo by
Belgium
officially gazetted
1909: Belgium
publishes plan for
Congo reform
1909 (14 July):
Bülow resigns
72
New Imperialism and the Legal Disentanglement of Dichotomies
from German
chancellorship
1909 (14
December):
Death of Leopold
II
73