2 Sovereignty: a Gift of Civilization – International Lawyers And

Sovereignty: a gift of civilization

that instead of being hidden behind hypocritical justifications such prac- 2 tices were openly advocated as consistent with new philosophical and scientific doctrines, especially sociology and evolutionism. Collectivist theories – such as the doctrine of the survival of the fittest – had become acceptable defenses to override individual rights. The historical school Sovereignty: a gift of civilization – in Germany and Comtist sociology in France had taught that individu- als were determined by their collectivities and that there were no uni- international lawyers and imperialism, versal principles, that laws and moralities were relative to particular 1870–1914 periods and locations.4 All of this was invoked by great powers to give war a new justification. Catellani ended his melancholy overview as follows: “if the international society must in the immediate future live and develop in accordance with the law of the struggle for life and the survival of the fittest, I myself wish that my country will not remain on Surveying the state of international law at the turn of the century,Enrico the side of the weak and the incapable, destined for submission and dis- Catellani (1856–1945), Professor at the University of Padua and appearance.”5 member of the Institut de droit international gave a gloomy view of the situation. If there was one tendency,he wrote, that was evident from the first Ambivalent attitudes moments of the new century, it was the increasing use of force in the determination of the fate of peoples.1 The law was moving away from International lawyers were confronted by imperialism at a time when the the mid-nineteenth-century ideals of justice and equality. No doubt, optimistic faith in the universal spread of civilized principles had entered there had been many developments in a positive direction: the increase a crisis.6 But if Catellani and others were disappointed by European and technical improvement of treaty law and private international law, progress in arbitration and the emergence of functional international co- 4 Catellani, “Le droit international,” pp. 408–413. operation.2 These developments were, however, overweighed by nega- 5 Catellani, “Le droit international,” p. 586. 6 Very little has been written on imperialism and international law. Not only does there tive ones. No real international society had come to existence beyond seem to exist no full-length study of the matter, there is an almost complete silence on Europe and the fundamental rights of peoples or States were no better it. There is, for instance, no entry for “imperialism” in the Max Planck Encyclopaedia of protected than a century before. Europeans still acted from a position of International Law. Nor is the word “imperialism” carried in the indexes of major inter- superiority towards others: capitulation regimes, consular jurisdiction, national law textbooks. With few exceptions, international lawyers have treated the subject as part of the history of territorial acquisition. The most comprehensive treat- and brutal colonial wars had become banal aspects of the international ment is Jörg Fisch, Die europäische Expansion und das Völkerrecht (Stuttgart, Steiner, 1984). everyday. Advancing civilization oppressed and impoverished indige- Perhaps there is a sense that “imperialism” is too much a politically loaded word, “no nous populations to the point of extinction – a fact accepted by imperial word for scholars.” The equation works both ways: in the voluminous amount of historical publication on European imperialism, international law is practically absent – powers as an inevitable consequence of modernity. Even in Europe, with the exception of references to effective occupation as the basis for title in non- powerful States had set up a permanent reign of control over the conti- European territory (with particular reference to the Act of Berlin of 1885). nent so that smaller powers enjoyed less autonomy than ever.3 All in all, “Imperialism” always appears as a political, economic, military, social, or cultural “fact,” a series of incidents or relationships instead of a normative category.It was first Catellani exclaimed, the nineteenth century had closed with imperial used in the 1850s and 1860s as a (British) characterization of French policies con- domination, methodological enslavement of populations, and war. ducted under Napoleon III. Thereafter, it has been linked to the expansive foreign pol- The particularly worrisome feature of this was, he then pointed out, icies of individual countries more generally, usually with a tint of criticism, perhaps by reference to Lenin’s famous thesis about the highest stage of capitalism. One general 1 Enrico Catellani, “Le droit international au commencement du XXe siècle” (1901), definition of imperialism reads: “the process by which either formal empires or signifi- VIII RGDIP, p. 585. 2 Catellani, “Le droit international,” pp. 386–400. cant influence and control short of direct rule – ‘informal’ empires – came into being 3 Catellani, “Le droit international,” pp. 400–408. and then grew.” Andrew Porter, European Imperialism 1860–1914 (Basingstoke,

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DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. http://dx.doi.org/10.1017/CBO9780511494222.004 http://dx.doi.org/10.1017/CBO9780511494222.004 Cambridge Books Online © Cambridge University Press, 2013 Cambridge Books Online © Cambridge University Press, 2013 The Gentle Civilizer of Nations Sovereignty: a gift of civilization behavior in the colonies, the ground from which they argued for humane for by reference to history and context, it seemed nonetheless impossible treatment of the natives was an outdated concept of natural law that had not to believe that what was common to Europeans encapsulated some little intellectual credibility even in their own professional milieu. Most kind of a non-contextual, objective form of experience, civilization tout of them agreed with Theodor Woolsey (1801–1889), President of Yale court. and the author of a leading American textbook of the period, that Penetrating deeper into the colonies – Africa in particular – lawyers making use of natural principles were in fact spinning the web Europeans came into contact with societies and cultural forms that of a system out of their own brains as if they were legislators of the seemed to share little of what they felt was the common core of their civ- world.7 In their nostalgic references to a universal natural law they were ilized identity. How were they to think of such societies and Europe’s ignoring the extent to which even the philosophes had wondered about the relationship to them? In the eighteenth century, Europeans had often appropriateness of applying identical precepts for the administration of either dismissed primitive societies on account of their not partaking of all societies. The ambivalence about the powers of natural reason was the same kind of humanity as that enjoyed by the Europeans, or ideal- plainly evident in Montesquieu whose Esprit des lois distinguished ized them into Noble Savages, representatives of a Golden Age lost to between “laws in general” that were based on human reason and thus Europe.9 Neither attitude had much by way of reasoned background applicable to all nations and laws in particular: “that should be in rela- and they often emerged in connection with stories intended to make a tion to the nature and principle of each government...totheclimate political point about present Europe rather than to provide a basis for of each country, to the quality of its soil, to its situation and extent... thinking about foreign cultures. In the course of the first half of the to the religion of the inhabitants, to their inclinations, riches, numbers, nineteenth century, such attitudes gave way to more historicized expla- commerce, manners and customs.”8 The view of law as reflection of nations such as the Comparative Method that viewed primitive peoples society and culture and not as derivation from universal principles could as earlier stages of human development in an overall law-like frame of not simply be unlearned. Even if most late nineteenth-century lawyers progressive history.10 By the 1870s the assumption of human develop- agreed that a world without some conception of universal, rational law ment proceeding by stages from the primitive to the civilized had come would be unthinkable, they emphasized law’s social and historical basis to form the bedrock of social anthropology and evolutionary sociology and struggled over complex formulas to fix the relationship between the that provided much of the conceptual background for cultivated two. Yet it was hard to accept that one’s own position shared in such con- European reflection about what Europeans often sweepingly termed the textuality: where Savigny’s historical explorations revealed that the Orient.11 German Geist resided in the rational formulas of Roman law,Maine con- textualized the use of rational law by English and international jurists as 19 Cf. e.g. Jean-Jacques Rousseau, A Discourse on Inequality, trans. with introduction by M. a culturally specific adoption of analogies from the Romans. But though Cranston (London, Penguin, 1984 [1755]), citing travellers’ stories about “the strength and vigour of men in barbarous and savage nations,” pp. 143–145 and variations between European cultures might be satisfactorily accounted passim. For comment, cf. J. W. Burrow, Evolution and Society. A Study in Victorian Social Theory (Cambridge University Press, 1966), pp. 4–6, 75–76. On the two modes of Footnote 6 (cont.) thinking about the primitive and of the Noble Savage idea as a strategy to undermine Macmillan, 1994), p. 2. Another definition draws a line between imperialism and colo- the idea of nobility itself, cf. also Hayden White, Tropics of Discourse. Essays in Cultural nialism: “Imperialism presupposes the will and the ability of an imperial center to define Criticism (Baltimore and London, Johns Hopkins University Press, 1985 [1978]), pp. as imperial its own national interests and enforce them worldwide in the anarchy of the 183–196. 10 Burrow, Evolution and Society, pp. 11–14, 78–82. international system. Imperialism implies not only colonial politics but international pol- 11 Of particular importance were E. B. Tylor, Primitive Culture: Researches into the Mythology, itics for which colonies are not just ends in themselves, but also pawns in global power Philosophy, Religion, Language, Custom, and Art (7th edn., New York, Brentano, 1924 games.” Jürgen Osterhammel, Colonialism. A Theoretical Overview (trans. from German [1871]) and Primitive Culture (2 vols., New York, Harper, 1958). The idea of a univer- S. L. Frisch, Princeton, Wiener, 1997), p. 21. In this chapter, imperialism appears as an sal history as “the realization of a hidden plan of nature to bring about an internally insistence on the extension of formal European sovereignty in the colonies. – and for this purpose also externally – perfect political constitution” is most influen- 7 T. D. Woolsey, Introduction to the Study of International Law (5th edn., London, Sampson, tially presented in Immanuel Kant, “Idea for a Universal History with a 1879), p. 13. Cosmopolitan Purpose,” in Political Writings, Hans Reiss, trans. H. B. Nisbet 8 Baron de Montesquieu, The Spirit of the Laws, trans. T. Nugent, introduction F. (Cambridge University Press, 1991), pp. 41–53. The quote is from Kant’s Eighth Neumann (New York and London, Hafner & Collier, 1949 [1748]), p. 6. Proposition, p. 50.

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Like much nineteenth-century social reflection, international law civilization. As shadows escape the light, law and civilization constantly imagined itself in terms of progressive, or pedigree history. It posited an reduced the space left for their antitheses: politics and barbarism.16 As early origin – usually somewhere in Western Antiquity, perhaps the uni- we have seen in chapter 1, much of what the lawyers behind the Institut versalism of Stoic thought – and then described itself in terms of how de droit international had to say about the conditions of international the promise of that origin had been preserved or enhanced by later society related to the degrees of civilization possessed by its members. developments, and how the present could be seen as its highest (though That “civilization” was not defined beyond impressionistic characteriza- always incomplete) stage of flourishing.12 A random example of how tions was an important aspect of its value. It was not part of some rigid pedigree history worked can be gleaned in the popular German text- classification but a shorthand for the qualities that international lawyers book by Franz von Liszt (1851–1919), for whom international law was a valued in their own societies, playing upon its opposites: the uncivilized, historical–contextual aspect of European culture and not a set of barbarian, and the savage. This provided a language for attitudes about immutable, God-given principles. Although legal relations between social difference and for constructing one’s own identity through what communities had existed since Greek and Roman Antiquity, the origin the historian Hayden White has called “ostensive self-definition by nega- of a systemic law lay in the Westphalian treaties. It was a necessary pre- tion” – a reflex action pointing towards the practices of others and condition of international law, he wrote, that there exist independent affirming that whatever we as Europeans are, at least we are not like States of approximately equal power that owing to common culture and that.17 interests engage in frequent contacts on a secular basis. From that point Although there is no necessary relationship between the Comparative he traced international legal history through five subsequent periods in Method, pedigree history, and racism, on the one hand, and expansion, which the original idea of a universal law between formally equal com- on the other, for men of liberal conscience such equation seems practi- munities was gradually strengthened through increasingly complicated cally inevitable. In Bluntschli, the narrative about progress as civilization legal arrangements – with the last (and highest) period coinciding with came together with racial speculation in a striking way. In an article the Hague Conferences and forceful European penetration in Africa, written in 1857 to the German Staatswörterbuch, he observed that of all Asia and the Far East.13 the races the highest were the Aryan and the Semitic, the former a race This type of history aimed at more than a neutral description of the of rationalism and philosophy, the latter a race of emotion and religion. flow of past events into the present.14 Its point was to justify present In particular, he opined, “All higher science is of Aryan origin.”18 The European expansion by making it appear as the fulfillment of the uni- superiority of the Aryan races lay in the way they emphasized the dignity versalist promise in the origin.15 In the case of Liszt and others, the pos- and honor of the human being. The Negro, for example, allowed his itive substance of this development was captured in the concept of master to enslave him, even threw himself on the ground before his “civilization” that now took the place of natural law as the universal master, and “lifted the master’s foot himself on his head.” The Aryan standard of evaluation and with the force of apparent natural necessity would never suffer such. The Aryan would also stress the honor of called for European expansion. Law, wrote Bluntschli’s successor in women – expressed in monogamy – and the honor of the family – Heidelberg, August von Bulmerincq (1822–1890), was the guardian of expressed in the fact that although the man was the head of the house- hold, his power over family members was not unlimited. The right of 12 For a good description of “pedigree history,” cf. Raymond Geuss, Morality, Culture and property and especially of the ownership of land were distinctly Aryan History. Essays on German Philosophy (Cambridge University Press, 1999), pp. 1–3. institutions, designed to give human beings “eine feste Heimat.”19 13 Franz von Liszt, Das Völkerrecht. Systematisch dargestellt (5th edn., Berlin, Häring, 1907), Above all, the Aryans were State people, Bluntschli wrote, having pp. 15–38. A brief standard history that specifically identifies the Stoics as the initia- tors of a general human law is Frantz Despagnet, Cours de droit international public (2nd edn., Paris, Larose, 1889), pp. 5–26. 16 A. Bulmerincq, “La politique et le droit dans la vie des états” (1877), IX RDI, p. 364. 14 Cf. also Burrow, Evolution and Society, pp. 93–100. 17 White, Tropics of Discourse, pp. 151–152. 15 This view is expressly argued in Joseph Hornung, “Quelques vues sur la preuve en 18 J. C. Bluntschli, “Arische Völker und arische Rechte,” in Gesammelte kleine Schiften (2 histoire, comparée avec la preuve judiciaire, sur les documents de l’histoire contem- vols., Nördlingen, Beck, 1879), I, p. 66. porain et sur l’importance historique de l’actualité” (1884), XVI RDI, pp. 71–83. 19 Bluntschli, “Arische Völker,” pp. 74–77, 78.

102 103 DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. http://dx.doi.org/10.1017/CBO9780511494222.004 http://dx.doi.org/10.1017/CBO9780511494222.004 Cambridge Books Online © Cambridge University Press, 2013 Cambridge Books Online © Cambridge University Press, 2013 The Gentle Civilizer of Nations Sovereignty: a gift of civilization already organized in political societies in ancient India. This progressive admission into the European community of nations in 1856, little had idea had been realized in Europe and was apparent in Europe’s world- changed in terms of attitudes. Lorimer had nothing but scorn for those dominance. Even if lower races sometimes succeeded in organizing who forecast Turkey’s rapid integration into the community of civilized themselves into States, these were theocracies lacking a balanced rela- nations: the Turks probably did not even belong to the progressive tionship between State and religion.20 Only Aryan States had realized races!26 Even the Swiss critic of Western imperialism and member of the human rights while in most non-Aryan communities the masses were Institut, Joseph Hornung (1822–1884), held the Orient to be profoundly treated as slaves or lived in wild independence. Only Aryan states had decadent and worth study only insofar as it had participated in the origin developed into rule-of-law States in which the King “liebt das Licht und of civilization, a kind of living souvenir of the West’s pre-history.27 ist ein Rechtskönig.”21 The Aryans had a natural drive for progress This is not to say that international lawyers would have developed a (Vervollkommnung): from the earliest days they had organized their politi- fully homogeneous colonial discourse. There were significant variations cal lives for the attainment of common purposes instead of waiting for of tone and emphasis in the way they treated European expansion, some divine intervention. No race could compete with them in the theory of of which reflected national backgrounds, some political leanings or per- the State which among Aryans had come to the greatest “elevation and sonal idiosyncrasies. Many had preserved Rousseau’s ambivalence clarity of ideas” in the Germanic people.22 And there was a about the ethical value of this development and spoke about coloniza- Missionsbewusstsein: the Aryans were to educate other races in political tion, at least of colonization by others, through a complicated language theory and statehood so as to fulfill their great historical assignment: “to of humanitarian regret and historical inevitability.The ambivalence was develop and complete the domination of the world which already lies in particularly evident in the French lawyers, perhaps in part as a reflection the hands of the Aryan peoples in a consciously humanistic and noble of the persistence of the discourse of the philosophes in French culture way so as to teach civilization for the whole mankind.”23 generally and a strong sense of a mission civilisatrice based on republican Bluntschli’s ideas may have been expressed in a language that many of ideals.28 Louis Renault (1843–1918), for example, the future doyen of his colleagues might have found distasteful – and he himself later avoided the French international law community, writing in 1879, repeated it. Though Lorimer went even further in his antisemitism, and in his Montesquieu’s distinction between a natural law (that was largely nega- indictment of “Mohammedism,” his arguments were dressed in a more tive, prohibiting the causing of harm to others) and a cultural law, based conventionally Darwinistic garb.24 Yet there is no reason to assume that on the progress of civilization, the marvelous discoveries of modern the properties which they valued in “Aryan races” would not have been science, and common traditions. Yet it was the former that controlled valued by Institut members generally. Generalizations about the lack of a what could be achieved by the latter: too often, he wrote, the Europeans proper concept of the State in the Orient, about the fatalism or stagna- had misused their power against the “so-called barbarians” and waged tion of non-European societies – such as Maine’s casual division of soci- unjust wars against them, violating the most elementary rules of inter- eties into progressive and stationary ones – were a part of the educated national law.29 Such a general criticism in a textbook hardly counted as common sense of the period that portrayed the East as voiceless, femi- 26 Lorimer, “La doctrine de la reconnaissance,” pp. 342–343. nine, irrational, despotic, and backward and the West as rational, male, 27 25 Joseph Hornung, “Civilisés et barbares,” (1884), XVI RDI, p. 79. democratic, and forward-looking. Despite all the talk about Turkey’s 28 Alice Conklin defines the French civilizing ideal in terms of “mastery” – not only of others but of oneself, nature and society: “the French believed that they had tri- 20 This fact was cited against Turkey in Bluntschli, “Le Congrès de Berlin et sa portée umphed over geography, climate and disease to create new internal and external au point de vue de droit international” (1879), XI RDI, pp. 420–430. markets, and because they before all other nations had overcome oppression and 21 Bluntschli, “Arische Völker,” pp. 82, 86. 22 Bluntschli, “Arische Völker,” p. 89. superstition to form a democratic and rational government.” The non-European 23 Bluntschli, “Arische Völker,” p. 90. world lacked precisely these qualities: “the crucial ability to master – that they were 24 James Lorimer, “La doctrine de la reconnaissance. Fondement du droit international” just as obviously barbarians, in need of civilizing.” Alice L. Conklin, A Mission to (1884), XVI RDI, pp. 333–359. Civilize. The Republican Idea of Empire in France and West Africa 1895–1930 (Stanford 25 Cf. Edward Saïd, Orientalism. Western Conceptions of the Orient (Harmondsworth, University Press, 1997), p. 6. Penguin, 1995 [1978]), pp. 57–73 and comment in Bart Moore-Gilbert, Postcolonial 29 Louis Renault, Introduction à l’étude de droit international, in L’oeuvre internationale de Louis Theory. Context, Practices, Politics (London, Verso, 1997), pp. 35–40. Renault (Paris, Editions internationales, 1932 [1879]), pp. 11–12, 17.

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DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. http://dx.doi.org/10.1017/CBO9780511494222.004 http://dx.doi.org/10.1017/CBO9780511494222.004 Cambridge Books Online © Cambridge University Press, 2013 Cambridge Books Online © Cambridge University Press, 2013 The Gentle Civilizer of Nations Sovereignty: a gift of civilization serious resistance to colonization, however. Renault had nothing but native communities during the early history of European expansion.37 sympathy for French consular jurisdiction in Turkey and China.30 Likewise, Edouard Engelhardt (1828–1916), Jules Ferry’s assistant and A more critical full-length survey of European colonization was pub- one of the French delegates at the Berlin Conference,38 published a lished in Paris a decade later by Charles Salomon (1862–1936) who was series of articles on the proper notion of the protectorate, waging a brief genuinely ironical about the civilizing mission: “No word is more vague battle within the Institut in order to insist that territorial acquisition be and has permitted the commission of more crimes than that of civiliza- connected with administrative duties.39 Salomon, Jèze, and Engelhardt tion.”31 With the exception of Vitoria and Las Casas, no attention had each advocated the formal extension of European sovereignty into colo- been paid to indigenous rights. Salomon condemned “the deplorable nial territory as the only means to check the excesses of purely commer- excesses that tarnished the history of Spanish colonisation.”32 Although cial colonization. This was not a radical point by Frenchmen, however, Salomon admired the tolerant spirit in France in the seventeenth as French colonization had always been conducted as official State century and noted a marked improvement in the way the natives now policy, often through military conquest. French lawyers were as enthu- were treated by the English – especially by the Quakers – he still held siastic about the colonial venture as any,and never failed to mention how colonization as violent and unjust for the natives: “the history of all col- the native treaties concluded by the French–Italian adventurer Pierre onies begins with violence, injustice and shedding of blood: the result is Savorgnan de Brazza (1852–1905) in the French Congo in 1880 had everywhere the same; the disappearance of the native races (des races been negotiated in an atmosphere of friendly brotherhood with local sauvages) coming into contact with civilized races.”33 Although the chiefs in contrast to the aggressive manipulations of the requirement of effective occupation did mean an improvement in the British–American H. M. Stanley (1841–1904) at the service of the King law, the result of the 1884–1885 Berlin Conference had made little prac- of the Belgians or the German Carl Peters (1856–1918) acting on his tical difference. “It cannot be said that the history of colonization during own in East Africa.40 the past five years would present a morally more adequate image than Humanitarian sentiments and regret about European brutality were that of the past century.” ”34 Salomon read the contemporary language of course not simply a preserve of the French. A representative mixture of civilization as pure hypocrisy that sought only the advancement of of historical and racial generalization, ambivalence about progress and commerce.35 To be civilized, he thought, gave no basis for more exten- popular humanitarianism can be gleaned from a speech by Lord Russell sive rights but in fact imposed duties: lack of civilization was a problem, (1832–1900), speaking as an Englishman to the American Bar not a vice. But though he made detailed references to past and contem- Association in 1896. Affirming the progressive nature of human history, porary European excesses, and spoke in favor of treating indigenous he added “progressive, let us hope, to a higher, a purer, a more unselfish communities in a humane way, and sometimes from a basis of equality, ethical standard.”41 He had no doubt that as with religion, countless Salomon’s book hardly constituted an attack on colonialism itself. Its crimes had been committed in the name of civilization in the course of problems were attributed to external causes: egoism, greed, and vanity. European expansion. “Probably it was inevitable that the weaker races Gaston Jèze (1869–1953), too, who achieved moderate fame in the should, in the end, succumb, but have we always treated them with con- 1930s as the legal adviser of the Ethiopian Negus and as target of right- sideration and with justice?” Having rhetorically asked his audience wing protests in Paris, in 1896 wrote critically about the way coloniza- ”What indeed is true civilization?,” he let himself define it by an unam- tion had been left for adventurers and profit-seeking private biguously Victorian set of virtues: companies.36 He joined Salomon in condemning the destruction of 37 Salomon, L’occupation, pp. 29–81; Jèze, Etude théorique, pp. 90–103. 30 Renault, Introduction, p. 16n.1. 38 Jules Ferry (1832–1893) was a liberal politician, minister of foreign affairs and an 31 Ch. Salomon, L’occupation des territoires sans maître. Etude de droit international (Paris, Giard, advocate of French colonialism in Africa and the Far East. 1889), p. 195. 32 Salomon, L’occupation, p. 64. Cf. also p. 193. 39 Many of these articles are collected in Edouard Engelhardt, Les protectorats. Anciens et 33 Salomon, L’occupation, p. 68. 34 Salomon, L’occupation, pp. 83–84. modernes. Etude historique et juridique (Paris, Pedone, 1896). 35 Salomon, L’occupation, p. 197. 40 Cf. e.g. Jèze, Etude théorique, pp. 152–160. 36 Gaston Jèze, Etude théorique et pratique sur l’occupation comme mode d’acquérir les territoires en 41 Lord Russell of Killowen, “International Law” (1896), XLVIII Law Quarterly Review, droit international (Paris, Giard & Brière, 1896). pp. 315, 317.

106 107 DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. http://dx.doi.org/10.1017/CBO9780511494222.004 http://dx.doi.org/10.1017/CBO9780511494222.004 Cambridge Books Online © Cambridge University Press, 2013 Cambridge Books Online © Cambridge University Press, 2013 The Gentle Civilizer of Nations Sovereignty: a gift of civilization

Civilization is not a veneer; it must penetrate the very heart and core of societies While German lawyers started to write about colonialism only after of men. Its true signs are thought for the poor and suffering, chivalrous regard Bismarck’s famous volte-face in 1884, their treatment of it drew more and respect for woman, the frank recognition of human brotherhood irrespec- upon the tradition of national public law than upon international law: tive of race or colour or nation or religion, the narrowing of the domain of mere the focus of German interest lay in how the German Schützsgebiete should force as a governing factor in the world, the love of ordered freedom, abhorrence be seen from the perspective of the imperial constitution.46 Early com- 42 of what is mean and cruel and vile, ceaseless devotion to the claims of justice. mentators such as Paul Heilborn (1861–1932), Karl Heimburger It is a measure of the complex innerlichkeit of a Victorian lawyer and noble- (1859–1912), or Friedrich Geffcken (1830–1896) showed little awareness man that he could dwell on such attributes after having in the early part of the moral ambivalence of the civilizing mission and concentrated of his lecture decisively dismissed natural law and morality as stable bases their energy on clarifying the meaning and limits of concepts such as for international law.His “civilization” consisted of a set of psychological “protectorate” or “territorial sovereignty” (Gebietshoheit) or defending dispositions that appeared as simple “facts” imbedded in a reassuringly Germany’s right as a latecomer to the imperial game that would corre- progressive historical frame. Although progress required some tragic sac- spond to its role as a Great Power.47 They understood colonization as a rifices, it was still possible to perceive its benefits in the opposition between perfectly natural drive; just as ownership was a projection of the owner’s Western humanitarian sensitivity and Oriental barbarism: did not recent person in the material world, colonial possession was an aspect of the reports tell that Menelik, the victorious Emperor of Abyssinia, had healthy State’s identity and self-respect. One early German study main- ordered the cutting off of the right hands and feet of 500 Italian prison- tained that international law held the State’s quest for territory a justified ers?Here finallytherewasanunambiguousmeasureof progress.Though expression of its life-energy (“eine berechtigte Äusserung seine similar acts had been quite common in Europe some time ago, today the Lebensenergie”), and protected this as long as it did not conflict with the civilized world had learned to react to them with horror.43 legal spheres of other (European) States.48 In general, however, British lawyers such as Twiss, Westlake, and Hall But despite occasional disagreement about particular geographical had a much more matter-of-fact view of colonization than their French disputes or doctrinal matters such as the conditions of effective occupa- colleagues. Sir Travers Twiss, for instance, who acted as legal counsel to tion, the effect of native treaties or the legal position of colonial compa- King Léopold in the early 1880s, argued against the majority view that nies, international lawyers shared a sense of the inevitability of the private associations could not receive right of dominion in the colonies. modernizing process. Even Hornung dressed his criticism of European On the contrary, citing the cases of Maryland and Liberia – and antic- behavior in the colonies in the form of an appeal to charity and concern ipating what the Congo might in his view become – he described their for the weak and the uneducated.49 International lawyers were not insen- activities in predominantly philanthropic terms. Quoting Vattel and sitive to the humanitarian problems that accompanied colonialism. They Chief Justice Marshall approvingly,he also limited indigenous territorial all admired the Spanish scholastics of the sixteenth century.50 They saw rights by reference to the extent they had come to be effectively used.44 it as their role to minimize such problems through the export of rational, Westlake and Hall absented public law completely from the relations of public law-based administrative structures to manage the colonial protecting and protected communities: the only international law duties encounter, to include sovereignty among the benefits civilization would owed by the colonizer were towards other colonizers. Nor did colonization bring any determinate administrative duties. The situation in differ- 46 Cf. Carl Von Stengel, “La constitution et l’administration des colonies allemandes” ent protected territories differed so radically that the colonizing State (1895), III Revue de droit public et de la science politique en France et à l’étranger, pp. 275–292. “must be left to judge how far it can go at a given time, and through what 47 Paul Heilborn, Das völkerrechtliche Protektorat (Berlin, Springer, 1891); Karl Heimburger, form of organisation it is best to work.”45 Der Erwerb der Gebietshoheit (Karlsruhe, Braun, 1888). 48 Heimburger, Erwerb, p. 45. Likewise, F. H. Geffcken, “L’allemagne et la question coloniale” (1885), XVII RDI, p. 114. 42 Russell, “International Law,” p. 335. 43 Russell, “International Law,” pp. 325–326. 49 Hornung, “Civilisés et barbares” (1886), XVIII RDI, p. 188. 44 Travers Twiss, The Law of Nations Considered as Independent Political Communities (2 vols., 50 This was hardly a radical position, as even the Spanish government had officially 2nd edn., Oxford, Clarendon, 1884), I, pp. x–xvi and 217–224. adopted the view of Las Casas against that of Sepulvéda. V. G. Kiernan, Imperialism 45 W.E. Hall, A Treatise on International Law (4th edn., Oxford, Clarendon, 1895), pp. 132, and Its Contradictions, ed. and introduction by Harvey J. Kaye (New York and London, 133. Routledge, 1995), p. 102. 108 109 DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. DownloadedCambridge from Cambridge Books Books Online Online © by IPCambridge 128.250.144.144 Universityon Thu Sep 26 08:30:59 Press, WEST 2009 2013. http://dx.doi.org/10.1017/CBO9780511494222.004 http://dx.doi.org/10.1017/CBO9780511494222.004 Cambridge Books Online © Cambridge University Press, 2013 Cambridge Books Online © Cambridge University Press, 2013 The Gentle Civilizer of Nations bring. If they also thereby legitimized some of the worst injustices in the history of modernity, they did this unwittingly, and it is a moot question whether their absence from the scene – marginal as they always were – would have provided the Age of Empire with any better credentials.

Informal empire 1815–1870: hic sunt leones

After the Napoleonic wars, European expansion took place with little sense of a conscious process. Europeans had expressed some systematic interest in the exploration of non-European spaces in the eighteenth century but the upheavals of century’s end made the society turn inwards. Great Power diplomacy sought to reconstruct the European equilibrium and with the exception of the Eastern Question, the European Concert focused until 1884 exclusively on European affairs. In some ways, official Europe was losing ground. The independence of Spanish America (1822) and the secession of Brazil from Portugal brought the decay of two empires to a conclusion. French energies were absorbed by three revolutions. The seizure of Algeria in 1830 as part of the restaurationist policy of Charles X had led France into an endless and unpopular guerrilla war. The French Parliament had no enthusiasm for colonial ventures and when the Empire fell in 1870, many felt that imperial ambition was partly to blame.51 Likewise, the “great mass of German bourgeoisie wanted no part in colonial adventure.”52 German attention was focused on the continent, on unification as well as on con- stitutional and social conflict at home. In the 1870s Bismarck still rejected proposals by the German Kolonialverein to set up colonies. He thought them expensive and was against the idea of having to request funds from the Reichstag in a way that might have strengthened the latter’s hand against the Chancellor.53 Italy, too, was busy getting united. Russia moved back and forth in the east and Austria was preoccupied in the Balkans. European populations had little interest in colonies. Attention was directed at social upheaval at home and at the advantages and problems of industrialization. Questions relating to non-European regions were

51 James J. Cooke, New French Imperialism 1880–1910: The Third Republic and Colonial Expansion (Newton Abbot, Archon, 1973), pp. 13–14. 52 L. H. Gann, and Peter Duignan, The Burden of Empire. An Appraisal of Western Colonialism in Africa South of the Sahara (Stanford University Press, 1971), p. 187. 53 Cf. e.g. Henri Wesseling, Le partage de l’Afrique 1880–1914, traduit du néerlandais par Patrick Grilli (Paris, Denoël, 1996), pp. 152–154.

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