New Imperialism and the Legal Disentanglement of Dichotomies

Home , Msiri, New Imperialism, Obock, Res nullius, Treaty of Paris (1898)

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

1 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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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

3 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

4 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 2 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.

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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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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.

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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. non- civilization 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.

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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 non- European 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.

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(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. 20H. 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 (1548- 1617), 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.

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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: Nussbaum25 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. 25 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).

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. 35 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.

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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 “full- Sovereign 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.

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„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 non- European 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.

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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 non- European 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. 70 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.

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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:

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.

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„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 sovereignty85, 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.

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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

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.

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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).

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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. 98 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.

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. Mensah- Brown (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‟.

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„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‟.

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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 non- European 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.

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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.

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„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. 126 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

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 non- Europeans, 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 extra- European 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. 148 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.

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. Mensah- Brown (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.

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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 25th 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. 165 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.

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). 169 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.

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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 nations.175 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.

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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 (1992- 1993), 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. 184 Ibid., p. 338. 185 Ibid. 186 Ibid., p. 353. 187 Ibid.

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.

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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 non- cultivated 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.

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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.

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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

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.

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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.

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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 Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1798: Napoleon 1787: British 1853-6: 1858-9: Burton 1795-1803: 1807: Slave trade takes Egypt, but settlers, including Livingstone‟s and Speke British abolished French evacuate freed slaves, second discover Lake occupation of throughout troops after establish colony expedition; Tanganyika. Cape Colony, British Empire British victory at at Sierra Leone crossing of Africa Speke discovers captured from the 1834: Slavery Alexandria 1816: Gambia re- and discovery of Lake Victoria Dutch East India abolished (1801) occupied by Victoria Falls 1858-61: Company throughout 1805-47: British after Livingstone‟s 1806: Second British Empire Muhammad Ali French third expedition: British 1848: Slavery master of Egypt withdrawal discovery of Lake occupation begins abolished 1820-2: 1860: Al Haj Nyasa 1814: British rule throughout Muhammad Ali‟s Umar leaves 1860-3: Speke confirmed by French colonies troops conquer Senegal to French and Grant explore Treaty of Paris 1865: Accession Sudan, in search 1861: US Lake Victoria and 1820: British of Leopold II, of slaves and gold recognizes identify it as main settlers land in King of the 1823: Khartoum Liberia, founded source of White Eastern Cape Belgians founded for free slaves Nile 1820-34: The 1867: Britain 1830: French 1861: British 1864: Baker Mfecane gives Canada capture Algiers occupy Lagos discovers Lake („crushing‟) dominion status 1848-54: Abbas I 1862: Al Haj Albert establishes Zulu 1868 (29 Khedive of Egypt Umar conquers 1866: Turkey kingdom as the February-2 1854-63: Said Segu grants Suakin and leading African December): Khedive of Egypt 1863: French Massawa to power in South Disraeli‟s first 1854: Said grants declare Egypt Africa ministry Suez canal protectorate over 1867-8: British 1835: Beginning 1868-74: concession to Porto Novo, on expedition under of Great Trek Gladstone‟s first Ferdinand de coast of Dahomey Napier to rescue across Orange ministry Lesseps 1864: Al Haj hostages taken by and Vaal rivers 1863-79: Ismael Umar killed at Ethiopian 1838: Dingane Khedive of Egypt siege of Emperor and Zulus kill 1869: Hamdallahi, Theodore Piet Retief and Inauguration of succeeded by 1868 (April 11- Voortrekkers in Suez Canal Sultan Ahmadu 13): Napier Natal 1866: French captures 1838 (16 acquire posts on Magdala. December): Boers Guinea coast Theodore beat Dingane at 1868: French commits suicide Battle of Blood protectorate River treaties on Ivory 1842: British take Coast Natal (annexed 1845) 1849-50: Livingstone‟s first expedition and discovery of Lake Ngami 1852: Sand River Convention confirms Transvaal‟s independence

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 Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1871-3: Baker 1874: British 1871: Livingstone 1870: Italian 1870: Lobengula 1874 (18 April): extends Egyptian declare Gold discovers river company takes succeeds Livingstone power in Coast, transferred Lualaba, over Assab on red Mzilikazi as King buried in Equatoria and from Dutch believing it flows Sea of Ndebele Westminster negotiates with control in 1868, a from the lost 1872: Ras Kassa 1870: Diamond Abbey Kabaka Mtesa of British colony source of White crowned as rush to 1874-80: Buganda 1874: British Nile Emperor Griqualand West Disraeli‟s second 1874-6: Gordon defeat Ashanti. 1871 (10 Yohannes IV of 1871: Kimberley ministry succeeds Baker as Wolseley enters November): Ethiopia founded 1875 Governor of Kumasi (4 Stanley meets 1873: Bartle 1871 (17 (November): Equatoria and February) Livingstone at Frere and John October): Brtitain Disraeli buys pushes Egyptian 1879: George Ujiji and re- Kirk, consul at annexes Khedive Ismael‟s empire within Goldie founds supplies him Zanzibar, Griqualand West 44 per cent sixty miles of United Africa Co. 1873 (1 May): persuade Sultan to Cape Colony holding of Suez Lake Victoria (later National Livingstone dies to abolish slave despite protests of Canal shares for 1876-8: Egypt Africa Co.) at Chitambo‟s trade Orange Free State Britain going bankrupt. village, Ilala 1875 (16 1872: Britain 1876: Abortive „Dual Control‟ of 1875 (6 November): gives Cape London British and November): Yohannes defeats Colony conference on French controllers Cameron reaches Egyptians at Bay responsible South African to supervise coast of Angola of Gundet government Federation revenue after crossing 1876 (7 March): 1873-5: 1876 (12-14 1878-9: Gordon‟s Africa Yohannes wins Langalibalele September): war against 1875: Stanley decisive victory affair and trial Leopold II slavers when explores at bay of Gura 1876: Pedi War sponsors Governor General Buganda, and 1877-8: British bankrupts geographical of Sudan sends appeal for missionaries Transvaal conference in 1879 (18 British establish bases 1877-80: Frere Brussels February): Nubar missionaries north and south of High 1876-7: Leoplod Pasha and Rivers 1875-8: Brazza Lake Victoria Commissioner at founds Wilson mobbed explores river Cape Town International in Cairo. Ismael Ogowe and river 1877 (12 March): African sacks Nubar Alima Britain annexes Association Pasha. (April) 1877 (17 Walvis Bay to 1878 (13 June-13 Ismael sacks October): Stanley Cape Colony July): Berlin Rivers Wilson: reaches Boma 1877 (12 April): Congress. coup against after crossing Shepstone Bismarck offers Powers. (June 25) Africa and annexes France the At request of discovering Transvaal for Tunesian „pear‟ European Powers, course of Congo Britain, despite 1878-9: Leopold Sultan disposes 1879 (4 August): Boer protests forms Comité Khedive Ismael. Stanley begins to 1877-8: Frontier d’Etudes du Haut Tewfik succeeds. open up Congo War with Congo and enrols

61 New Imperialism and the Legal Disentanglement of Dichotomies

for Leopold Gcalekas and Stanley for five Ngqikas years‟ service 1878 (11 1879: Jules Grévy December): Frere President of sends ultimatum France (till 1887) to Cetshwayo and 1879 Zulus (November): 1879 (12 Gladstone January): denounces Outbreak of Zulu imperialism in War. (22 January) Midlothian British beaten by speeches 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

1880-1882:

Egypt, Sudan Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1881 (April): 1880: Gallieni 1880 (10 1881: French 1880 (8-15 1880 (April): End French army negotiates Treaty September): occupy Obock in December): of Disraeli‟s under General of Nango with Brazza signs Somaliland Transvaal Boers, (Beaconfield‟s) Bréart invades Ahmadu, Sultan treaty with King (acquired in under triumvirate second and last Tunisia from of Tukolors (not Makoko and 1862) led by Kruger, ministry. Start of Algeria. (12 ratified) founds 1882: Italian meet at Gladstone‟s May): Treaty of 1880: Cameroon Brazzaville. (21 government takes Paardekraal and second ministry Bardo by which „kings‟ appeal for November) over Assab decide to hoist (till 1885). (23 French impose British protection Brazza confronts flag of republic September) Start protectorate on Stanley on the and restore of Jules Ferry‟s Bey of Tunis. (19 Congo Transvaal‟s first ministry June) Muhammad 1881-2: Stanley independence. (20 1881: Tunisian Ahmad proclaims signs treaties with December) Boers debacle himself Mahdi in Congo chiefs and ambush 94th precipitates fall of the Sudan. (9 founds Regiment at Jules Ferry (5 September) Leopoldville Bronkhorst November), Nationalist coup opposite Spruit. British succeeded by in Egypt led by Brazzaville garrisons Gambetta (till Arabi Pasha 1882 (April): besieged in January 1882) 1881 (June-July): Stanley launches Transvaal 1882 (January): Risings in south En Avant on 1881: Boers Freycinet‟s first Tunisia Upper Congo invade Natal and ministry begins 1882 (January): 1882-3: Stanley repulse Colley‟s 1882 (6 May): Arabi Pasha made and Brazza return relief column at Murders in War Minister. to Congo with Laing‟s Nek (28 Phoenix Park, Anglo-French new expeditions January), Ingogo Dublin note sent to (7 February) and 1882 (20 May): Khedive. (10-12 Majuba (27 Triple Alliance June) Riots in February). Colley (Germany, Alexandria kill killed. Armistice Austria, Italy)

62 New Imperialism and the Legal Disentanglement of Dichotomies

fifty Europeans. and negotiated 1882: Egyptian (11 July) British peace follow. (3 debacle fleet bombards August) Pretoria precipitates fall of Alexandria. (13, Convention. Freycinet 15 September) Britain restores 1882: Gladstone‟s Wolseley‟s army independence to government defeats Arabi at Transvaal subject rejects appeal by Tel el-Kebir and to British Cameroon „kings‟ occupies Cairo „suzerainty‟ 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

1883-1884:

Egypt, Sudan Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1883 (5 1883 (7 1884 (November 1883 (16 April): 1883 (21 November): February): and December): After abolition of February): Start Mahdi annihilates Borgnis- Carl Peters signs triumvirate, of Ferry‟s second Hicks Pasha and Desbordes lays first treaties with Kruger elected ministry (till 21 10.000 Egyptian foundation of fort chiefs on President of March 1885) soldiers at Bay of at Bamako, first mainland Transvaal for first 1884 (26 El Obeid French foothold opposite time February): Anglo- (Shaykan) and on Upper Niger. Zanzibar. 1884 (7 August): Portuguese treaty seizes Kordofan (April) French (December) German shuts mouth of 1884 (18 repulse attack on Death of King protectorate Congo to Leopold February): Bamako fort by Mtesa, Kabaka of declared over and French. Gordon reaches Fabou, brother of Buganda, Angra Pequena. Treaty withdrawn Khartoum with Samori, Malinka Mwanga, his (February) after international orders to evacuate warlord erratic young son, Cetshwayo protests garrison. (12 1883: French sign succeeds expelled from 1884 (22 April): march) Siege treaty with King Zululand, then US formally begins . Tofa re- (May) Dinizulu, recognize (September) establishing his son, crowned Leopold‟s Congo. Wolseley leaves protectorate at as king French sign pre- Cairo with Porto Novo 1884 (28 August): emption treaty expedition to adjoining London with Leopold. rescue Gordon Dahomey. Mattei Convention on (July-August) and garrison of fails to sign treaty Transvaal omits Abortive London Khartoum for France with British suzerainty conference on Brass chiefs but which had limited Egyptian finance. establishes Transvaal Jules Ferry and factory at Nupe independence. Bismarck after helping (December) To continue to Emir crush revolt block Transvaal‟s frustrate British 1884 (June): advance to the plans Hewett begins sea, Britain 1884 (May): treaty-making trip annexes St Lucia Gladstone‟s to Oil Rivers Bay cabinet sends 1884: Nachtigal Consul Hewett to sent by Bismarck sign treaties with hoists German Western African flag over Togo (5 chiefs. (June-

63 New Imperialism and the Legal Disentanglement of Dichotomies

July) and over July) British Cameroon (14 Protectorate over July) 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 Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1885 (17 1886: British 1886 (August): 1885 (Februari): 1886 1885 (17 January): Bay of gunboats mount Arab slave traders Egyptians (September): February): Abu Klea. (26 punitive attack Congo evacuate Gold rush to Bismarck January) Mahdi expedition against Free State Massawa and Transvaal begins. declares German takes Khartoum Brass villages garrison post at Italians take over. Johannesburg protectorate over and massacres along Niger after Stanley Falls (7 August) founded part of eastern garrison including attacks on ships German warships Africa to be Gordon. (22 June) of Royal Niger demonstrate at administered by Death of Mahdi, Co. Zanzibar and new charter succeeded by the force Sultan to company founded Khalifa. Spain accept loss of by Carl Peters. claims territory at mainland empire. (26 February) Rio de Oro (November) Conclusion of Boundary berlin Conference commission with general Act meets to decide of berlin signed frontier between by the Powers, German and including British „spheres‟. International (November) Association. (31 Bishop March) Britain Hannington proclaims murdered at protectorate over Buganda frontier Bechuanaland. on orders of (April) Leopold Mwanga. British proclaimed occupy Berbera sovereign of and Zeila Congo Free State. (June) Humiliated 1886 (June): by failure to save Christian Gordon, converts, Gladstone‟s Protestant and government Catholic, resigns. martyred in Salisbury‟s first Buganda ministry begins

1886: Junker 1886 (January): reaches Mackay Gladstone returns with sos from to power on a Emin Pasha. Home Rule ticket. (November) (10 July) Goldie Anglo-German wins charter for agreement on Royal Niger Company. (July)

64 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 Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1887: Abortive 1887: British 1887 (February): 1887: Mahdists 1887: British 1887: Sadi- Convention with deport King Jaja Stanley, attack Emperor annex Zululand Carnot succeeds Turkey by which from Opobo for sponsored by Yohannes and (to Natal 1897) Grévy as Britain made challenging both Leopold and burn Gondar. President (till conditional monopoly Mackinnon, Yohannes‟ rival, 1888: Portuguese 1894). (26 May) agreement to exercised by leaves Zanzibar King Menelik of refuse transit for Salisbury gives withdraw from Royal Niger en route for river Shoa, deposes arms needed by royal charter to Egypt Company Congo to „rescue‟ Sultan of Harar British Mackinnon‟s Emin Pasha and extends his missionaries IBEA Company 1889 (May): 1889 (10 kingdom further fighting slavers Stanley and Emin January): France 1888 (29 April): into Galla country on Lake Nyasa. 1888: Pope Leo leave Equatoria declares Stanley meets Portuguese XIII orders protectorate over Emin Pasha at 1888-9: Abushiri advance into cardinal Lavigerie Ivory Coast Lake Albert rebellion in interior. Rhodes to launch crusade German East and beit against slavery. Africa. French amalgamate (15 June) transfer Red Sea diamond mines at Accession of post from obock Kimberley and Kaiser Wilhelm II to Jibouti. IBEA form De Beers lease coastal strip Consolidated. 1889: Britain from Sultan of (October) Rhodes proclaims Zanzibar and obtains Rudd protectorate over begins stations on Concession from Shire districts mainland Lobengula giving (and all him exclusive Nyasaland in 1889 (12 March): mining rights in 1891) Emperor Mashonaland and Yohannes killed Matabeleland. (29 by Mahdists at October): Bay of Metema Salisbury gives (Gallabat). royal charter to Menelik Rhodes‟ BSA proclaims himself Company 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. (October- December) Carl Peters eludes

65 New Imperialism and the Legal Disentanglement of Dichotomies

coastal blockade, crushes Masai, reaches Uganda (February 1890)

1890-1892:

Egypt, Sudan Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1890-1: 1891-2; harry 1890 (spring): 1890 (17 July): 1890 (18 March): Archinard Johnston sent to Carl peters Rhodes becomes Bismarck, captures Segu and Nyasaland as first reaches Uganda prime Minister at dismissed by other Tukolor Commissioner, and signs treaty the Cape. (July- Kaiser Wilhelm towns. Bambara crushes slavers. with Kabaka September) II< replaced as revolt Congo State Mwanga. Rhodes‟ pioneer chancellor by sends four (December) column advances Caprivi. (24 May) 1890 (5 August): expeditions to Lugard, sent to into Mashonaland Mackinnon Anglo-French Katanga Uganda by IBEA and founds „treaty‟ with declaration on including Stairs‟ Co., forces Salisbury (13 Leopold gives West Africa, espedition which Mwanga to September) IBEA Co. a giving French kills Msiri at accept new treaty corridor for territory from Bunkeya. Attack 1891: British missing link from Mediterranean to by Van 1891: Lugard government Cape to Cairo. (1 Bight of Guinea, Kerckhoven on marches to agrees that BSA July) Anglo- but securing ivory merchants Equatoria and Co. should extend German Northern frontier enlists Sudanese operations to convention gives of Nigeria for 1892 (May): left there by Emin Barotseland (later Germany Britain. Murder of Pasha northern Heligoland in Archinard attacks Hodister and five Rhodesia). return for Samori‟s HQ Kan other agents of 1891: Britain Portugal, near Zanzibar, Uganda Kan Congo State recognizes Italian bankruptcy, and Witu. (2 July) protectorate over accepts The Brussels Act. 1891-2: Hubert 1892 (23 Ethiopia. But Mozambique Conclusion of drives him November): Menelik frontier imposed conference on eastwards Dhanis‟ force denounces Italian by Britain slave trade. (3 repulses Sefu‟s claims July) Publication 1892 attack, and drives 1892 of Leopold‟s will (September): thousands of 1891-3: Wahehe (September): First leaving Congo French crush Sefu‟s men into revolt in German train from Cape Free State to King Behanzin of London East Africa reaches Belgium. Dahomey and Johannesburg and Belgium (December) 1891 (25 (December) advances interest- extend December): Pretoria free loan protectorate Lugard informed that IBEA Co. 1892: Gladstone intend to evacuate defeats Salisbury Uganda in general election and (18 1892 (24 August) begins January): Lugard, fourth and final with Maxim gun, ministry helps pro-British Protestants defeat 1892 (28 pro-French September): catholics in Rosebery Buganda civil persuades cabinet war. Mwanga to agree to flees postpone evacuation of 1892 (December): Uganda Cabinet send out portal to report on 1892 (October):

66 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 Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1894: Italians 1893 (10 March): 1893 (4 march): 1893 (10 march): 1893 (22 April): 1894 (3 march): capture Kassala Formal Dhanis captures IBEA Co. gives Kruger elected for After Lords block from Mahdists establishment of Nyangwe, up responsibility third term as second Home Guinea and Ivory massacres Arabs for Uganda. Transvaal Rule Bill, Coast as French and burns down Portal President. (12 Gladstone colonies. recommends May) Natal given resigns. Rosebery (December) 1893 (22 April): retaining it for responsible takes over as French defeat Capture of Britain government. Prime Minister. Tuaregs and Kasongo (October) After (24 June) capture Timbuctu 1894 (18 June): Ndebele raid on President Sadi- 1894 (12 April): Rosebery Fort Victoria, DR Carnot stabbed to 1893-4: Third Secret Congo formally makes Jameson invades death. Succeded Ashanti war treaty confirms Uganda a British Matabeleland, by Casimir- Leopold‟s access protectorate defeats Perier. (October) 1894 (October- to Bahr al- Lobengula‟s Caprivi replaced November): Ghazal, gives 1895 (25 March): Impis and by Prince Lugard signs Britain a Cape-to- Italians begin captures Hohenlohe. treaties with Cairo line. But invasion of Bulawayo (4 (December) frontier chiefs. after France and Ethiopia from November) Dreyfus Decoeur makes Germany protest, Eritrea. (July) condemned and counter-claims Britain loses With collapse of 1894 (January): sent to Devil‟s corridor and IBEA Co., Lobengula dies in Island 1895 (1 January): Leopold is only Rosebery creates hiding. Niger Company allowed Lado British East (September) To 1895 (21 June): claim protectorate enclave African connect Cape and On collapse of covers Nikki and Protectorate. Natal, Britain Rosebery‟s Bussa Menelik repulses annexes government, Baratieri‟s Pondoland Salisbury begins 1895 (29 advance guard at third and final January): Amba Alagi (8 1895 (June): To ministry. Brassmen attack December) seal off Transvaal Chamberlain is Niger Co.‟s from sea, Britain Colonial station at Akassa annexes Secretary and kill and eat Tongoland. (July) captives. Kruger ends 1895: Félix faure (February) isolation of succeeds Casimir- Brassmen‟s revolt Transvaal by Perier as suppressed by opening railway President (till british navy from Pretoria and 1899). (29 Johannesburg to December) Dr Delagoa bay in Jameson launches Mozambique the Raid from bases in cape and Bechuanaland

67 New Imperialism and the Legal Disentanglement of Dichotomies

1896-1898:

Egypt, Sudan Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1896 (21 1896 (18 1897 (February): 1896 (1 March): 1896 (2 January): 1896 (3 January): September): January): Fourth Congo Free State Menelik crushes Jameson and 500 Kaiser‟s telegram Kitchener and Ashanti war. column under Baratieri‟s Rhodesian police to Kruger, Anglo-Egyptian British take Chaltin seize invasion force at surrender to congratulating army start Kumasi and Lado base on bay of Adowa Transvaal him on his defeat reconquest of impose Upper Nile. and captures burghers at of Jameson. (12 Sudan by taking protectorate (February) 4.000 prisoners. Doornkop. (6 March) Dongola Dhanis‟ army 926 October) January) Rhodes, Salisbury‟s 1898 (April- mutinies at Ndirfi Italian treaty with implicated in the government 1897 (8 August): May): Lugard and and extinguishes Ethiopia. Menelik Raid, forced to decides to seize Kitchener WAFF contest Leopold‟s hopes forces Italy to resign as Prime opportunity advances to Abu French claims on of taking over recognize Minister of Cape provided by Hamed western frontier southern Sudan. Ethiopian Colony. (24 Italian defeat at of Nigeria. British Marchand‟s independence in March) Adowa by 1898 (8 April): and French close column drags exchange for Withdrawal of beginning re- Kitchener crushes to blows. (14 Faidherbe in Italian prisoners, Rhodesian police conquest of Mahmud and June) Salisbury sections over but agrees to let triggers rising in Sudan. (May) Mahdist at bay of negotiates Anglo- Nile-Congo Italy keep Eritrea Matabeleland. Collapse of Atbara. (10 July) French agreement watershed (June) Shona Anglo-French Marchand reaches on West Africa 1897 (20 March): rising follows. talks on Niger. Fashoda, signs and ends Niger French treaty (October) Rhodes (June) treaty with Dinka crisis. (29 with Ethiopia. helps negotiate Marchand‟s mek, and hoists September) Delclassé hopes surrender with expedition leaves French tricolour. French capture to use it as a base Ndebele Indunas France with (2 September) Samori and exile for advance on orders to advance Kitchener him to Gabon Nile but two 1897 (August): to Nile-Congo annihilates French Sir Alfred Milner watershed and Khalifa‟s army at expeditions fail to appointed High beyond bay of reach Fashoda via Commissioner Omdurman and Ethiopia. (14 1897: Crucial recaptures May) British 1898 (February): telegrams Khartoum. (19 treaty with Kruger elected withheld from September) Ethiopia; Britain President of the London enquiry Kitchener takes concedes part of Transvaal for into Raid, so gunboats down Somaliland but fourth term Joseph Nile to confront gets nothing in Chamberlain Marchand at return. (July- cleared of Fashoda August) Mwanga collusion with tries to regain Rhodes and Beit Ugandan throne but is forced to 1898 (August): flee. (September) Colonel Henry Mutiny of admits forging Sudanese troops documents in in Uganda Dreyfus Affair, cripples and second MacDonald‟s Dreyfus crisis force 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

68 New Imperialism and the Legal Disentanglement of Dichotomies

down and order Marchand to evacuate Fashoda

1899-1902:

Egypt, Sudan Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1899 (January): 2899 (21 March): 1899: French 1899 (June): 1899 (24 March): 1899 (16 British and Anglo-French grant concessions Mwanga and Transvaal February): death Egyptian agreement to international Kabarega both Uitlanders send of President governments excludes the rubber companies captured and Queen Victoria Faure. Succeeded create French from Bahr in French Congo exiled to petition for by Loubet (till condominium al-Ghazal and Seychelles. (from British 1906). (October) over Sudan. (24 Darfur but leaves September) intervention to Hohenlohe November) them free hand British and Italian redress political resigns German Wingate kills further west. (9 Somaliland raided and economic chancellorship. Khalifa at August) by self- grievances. (31 Replaced by Mahdists‟ last Chamberlain proclaimed May-5 June) Bülow stand in Kordofan negotiates buy- Mahdi („Mad Abortive out of Goldie‟s Mullah‟) negotiations at 1900 (August- 1902: Menelik Niger Co. and Bloemfontein September): accepts Anglo- replacement by 1901 (December): between Milner Salisbury wins Egyptian treaty British First train on and Kruger. (11 „Khaki Election‟. by which he protectorate Uganda railway October) War divides abandons claim to reaches lake Outbreak of war liberals, Upper Nile 1900 (March- Victoria from on expiry of consolidates November): Mombasa and Kruger‟s Unionist majority 1902-3: Sultan of Rising in Ashanti opens up country ultimatum. (14-16 Morocco unable suppressed and for development October) Boers 1901: Belgium to check growing besieged british begin siege of decides not to disorder garrison relieved. 1902 (February): kekewich and exercise option to (May) French French Rhodes at take over Congo seize oases south government Kimberley, and from Leopold. of Morocco, agrees to Baden-Powell at (22 January) formerly subsidise Jibouti- Mafeking. (30 Death of Queen controlled by Addis Ababa October) Victoria. Edward Sultan railway „Mournful VII succeeds Monday‟. 1901: British 1902: land grant Nicholson‟s Nek 1902 (15 May): annex Ashanti to of 500 aquare and bay of Protest meeting in Gold Coast miles in Ladysmith. (2 mansion House, highlands near November) Start London against Nairobi starts of siege of Congo atrocities large-scale white Ladysmith settlement 1902 (July): 1899 (23 Salisbury retires November): and Balfour takes Boers abandon over as Prime raid southwards Minister as British begin attempt to relieve Kimberley and Ladysmith. (10- 15 December) Black Week. Gatacre‟s mishap at Stormberg. Methuen‟s repulse at Magersfontein, Buller‟s first

69 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. (14- 27 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 (February- November): Successful anti- guerrilla 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 Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1905 (31 May): 1903: Lugard 1903 (June): 1905 (July): 1904 (12 1904 (8 April): Offended by the makes British House of Maji-Maji rising January): Herero Entente Cordiale Entente, Kaiser masters of North Commons debate begins with rising begins in between Britain Wilhelm II lands Nigeria by Congo atrocities attacks in German South- and France ends at Tangier and conquering Kano and government Matumbi, then West Africa with twenty years‟ precipitates first (3 February) and agrees to confer spreads to attack on main bitter rivalry; Moroccan crisis Sokoto (15 with signatories isolated German garrisons gives Britain free March) of Berlin Act to East Africa south hand in Egypt and 1906 (January- „abate evils‟. of Dar-es-Salaam. 1904: Trotha France free hand April): Germans 1906: Lugard Consul Casement Murder of bishop issues in Morocco attend Algeciras takes violent ordered to Spiss, two priests „extermination conference, measures to put investigate and two nuns. (30 order‟ 1906: Dernburg ending Moroccan down Satiru situation in August) Germans condemning appointed crisis rebellion in Congo repulse attack on 20,000 Herero – Minister for Sokoto Mahenge. Risings men, women and Colonies. 1904 (February): not co-ordinated. children – to (December) Casement report Governor Götzen death in the Reichstag exposes atrocities suppresses Omaheke dissolved by by Congo state rebellion by sandveld. (3 Bülow. „Hottentot authorities starving out October) Election‟ rebels Outbreak of weakens 1905 Nama rebellion Socialists. (5 (November): December) Janssens‟ report 1905 (October): Balfour‟s confirms Morel‟s Hendrik Witbooi government claim that dies. End of resigns. exploitation is Nama rebellion Campbell- systematic Bannerman wins 1905-6: Boer ex- landslide victory 1905 (29 April): guerrillas agitate for Liberals, with Brazza arrives in for restoration of slogan „no Brazzaville to self-government Chinese slavery investigate in Transvaal and for South Africa‟ reports of the Orange Free atrocities by State 1906 (3 June): officials in Leopold‟s „royal French Congo 1906 (10 letter‟ defying the February): Powers to take 1905 (August): Martial law the Congo from French officials declared in him. President Toqué and Gaud Zululand. Loubet succeeded

71 New Imperialism and the Legal Disentanglement of Dichotomies

sentenced to five Ruthless by Armand years for suppression of Fallières. (11 atrocities Zulu rebellion December) triggered by poll President 1906 (May): tax Roosevelt Leopold finally announces US abandons claims 1906 (December): will help Britain to Bahr al-Ghazal Campbell- persuade Belgium Bannerman and to take over 1906 (14 Liberals Congo September): „magnanimously‟ Brazza dies at give Transvaal Dakar. responsible government 1907 (February): Brazza‟s report suppressed

1907-1912:

Egypt, Sudan Western Africa Central Africa Eastern Africa Southern Africa Europe, and the and Northern rest of the world Africa 1911 (2 May): 1910: Railway to 1907-8: 1907: Campbell- 1907 (April): The French enter Kano completed Churchill‟s East Bannerman gives Leopold‟s Fez. The Italians African tour. self-government obstruction over invade Tripoli. (1 Emperor Menelik to Orange River Congo leads to July) German paralysed by Colony fall of Smet de gunboat Panther stroke Naeyer‟s reaches Agadir, 1908-9 (12 government; de precipitates 1908: Railway to October- Trooz succeeds. second Moroccan Blantyre opened February): (December) crisis. (4 Constitutional International November) Convention in outcry over too Franco-German Durban, then generous terms Convention by Cape Town for Leopold when which Germany Congo transferred gives France a 1909 to Belgium. free hand in (September): Death of Trooz. Morocco in return British Parliament Schollaert for part of French passes South succeeds Congo Africa act, despite protests by 1908 (8 April): 1912 (30 March): Schreiner and Asquith succeeds Formal French other champions Campbell- protectorate of African Bannerman as imposed on political rights British Prime Morocco, with Minister Spanish Sahara 1910 (31 May): for Spain. Italians Union of South 1908 (20 invade Cyrenaica. Africa. (15 October): Start of Senussi September) Boers Annexation of War (till 1931) and Afrikaners Congo by gain control in Belgium Union‟s first officially gazetted general election. Botha first Prime 1909: Belgium Minister 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