New Imperialism and the Legal Disentanglement of Dichotomies New Imperialism and the Legal Disentanglement of Dichotomies This thesis will, firstly, construct the factual and legal fundaments on which the (research of the) master thesis rests, by defining New Imperialism and analyzing its factual and legal implications in practice. Secondly, it analyzes the legal doctrine with regard to colonialism, more specifically, New Imperialism in the framework of the law of nations in the second half of the nineteenth century and the beginning of the twentieth century. In this respect, a special focus will be laid on the relation between the colonizing power and the peoples on the newly discovered, conquered and occupied territories. And, thirdly, it (partly) deconstructs the leading and determining dichotomy in international law between the civilized and non-civilized world in the second half of the nineteenth century and the beginning of the twentieth century. Addressing the strengths and weaknesses of several dichotomies, like naturalism v. positivism, civilization v. non-civilization and territorial sovereignty v. private property of land, will be the central issue throughout the thesis. Master thesis prepared for the „Research Master in Law‟ Supervisor: Prof. Dr. R.C.H. Lesaffer Written by Mieke van der Linden Education: Research Master in Law (two-years-variant) ANR: 223364 E-mail: [email protected] Date: 28th of June, 2010 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. 2 New Imperialism and the Legal Disentanglement of Dichotomies Further, an understanding and awareness of imperialism is insurmountable in order to overcome and prevent future ethnic and border conflicts in relation to title to territory. Imperialism, in the sense of a civilizing mission, imposes social, economic, legal and cultural ideas and customs on „uncivilized‟. Therefore, imperialism is not an issue of colonization, but is an ongoing movement of international law with many appearances. The underlying research in regard to colonialism is meant to gain understanding of imperialism in general, in order to anticipate on recent and future trends of imperialism. Additionally, it is especially important to analyse treaty negotiations and conclusions in the Age of New Imperialism and to enquire a deep understanding of the positions and stances of both African and European parties. In this, the emphasis has to lie on the mutuality of attitude understanding and equality. Up till now, research was focused on how members of the European international system or order regarded the subjects of the non-European world. However, the question of how the non-European peoples perceived, understood and explained Europeans at the end of the nineteenth century has to be posed. This research has to serve the enhancement of the effectiveness of treaty negotiations and conclusions between Western and African parties or States nowadays by considering „the African perspective‟. It has to be avoided that the same mistakes will be made as were made at the end of the nineteenth century. Mieke van der Linden Tilburg, 28 June 2010 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.