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20250221 Chapter 1 - lecture 3

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20250221 Chapter 1 - lecture 3

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promisemogorosi
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JJVV 301 Public International Law

Chapter 1

Defining Epochs
The Epochs: the period: 1815 to 1914
▪ From 1848, political uprisings across Europe were driven by national liberation, unification
and liberal government.

▪ Led to Bismarck’s ambition to unify Germany from the States left behind after Napoleon’s
military defeat in 1815.

▪ Germany’s unification was the 19th century's greatest political and diplomatic event.

▪ Achieved through a series of wars fought by Prussia against Denmark, France and Austria.
▪ Bismark’s successful wars and military strategies created insecurity among rival States.

▪ Increased competitiveness among the great powers in military capacity, which contributed, in
part, to WWI.
The Epochs: the period: 1815 to 1914

▪ Berlin Conference (1884): convened by Bismarck, requested by Portugal, to


manage relations among colonial powers in Africa and lay the legal foundation
for colonialism.
▪ Attended by 14 countries (Britain, Portugal, France and Germany), no African
representation.

▪ These countries already controlled coastal areas.

▪ Established rules for acquisition of territory in Africa by colonial powers and


their chartered companies.

▪ Outcome: Berlin Act of 26 February 1885


The Epochs: the period: 1815 to 1914
▪ A brief history of the scramble for Africa:
https://www.youtube.com/watch?v=PzF88HBlAHY

▪ Article 34: imposed an obligation any signatory to the Act that acquired possession of
land on the African coast to notify the other signatories of the acquisition.

▪ Article 35: tried to create a legal basis for States to take control of African territory.

▪ required the establishment of authority in occupied regions “sufficient to protect existing


rights, and, as the case may be, freedom of trade and of transit under the conditions
agreed upon.”
The Epochs: the period: 1815 to 1914
▪ The Berlin Act had specific rules for the Congo region.

▪ It called for a free trade zone in the Congo River basin and aimed to improve
the well-being of the lives of inhabitants.

▪ The Act included a ban on slavery and slave trade.


▪ Despite these rules, King Leopold of Belgium est a personal monopoly over the
Congo.

▪ The US and European States recognised a private association led by Leopold


could exercise sovereignty over Congo.

▪ This resulted in the Congo becoming King Leopold’s personal possession.


Legal justification for colonisation
▪ Prominent debate: can colonial powers legally acquire territories not considered to be
States or nations by Western standards and whose inhabitants do not exercise
sovereignty?

▪ One view: the presence of an indigenous population in these territories did not prevent
the occupation of the territory for the purpose of asserting State sovereignty rights.

▪ [Who advanced this view? Page 15]

▪ Therefore, if a territory wasn’t recognised as a State or protectorate could become the


object of occupation.

▪ What do you notice about the language to describe non-European:

a) people b) land?
Legal justification for colonisation
▪ Another view: terra nullius was used to justify colonial conquests.

▪ Terra nullius means ”nobody’s land”

▪ In the 19th century, it was well known in Europe that Africa was not terra nullius in
the same sense that an uninhabited island is terra nullius.
▪ Africa had a population of people with established political systems.

▪ Problem? Direct contradiction of the idea of “nobody’s land”

▪ Purported solution? Redefine terra nullius


▪ Paradox
Legal justification for colonisation
▪ Theory: “occupation” had to be interpreted as the taking into possession of terra nullius.

▪ Premise: a territory was ownerless in international law if it did not belong to a subject of
international law.

▪ Subjects of international law = States that exercised all the rights of sovereignty and
performed State functions in the same way as modern European States did.

▪ The fact that there were people on a territory did not protect it against ownerlessness in
international law.

▪ Therefore, Africa was considered “ownerless” or terra nullius in international law.

▪ Any recognised subject of international law could occupy Africa as terra nullius.
Legal justification for colonisation
▪ Paradox/contradiction

▪ One hand: no government with sovereign powers to assert legal title over
territory

▪ On the other hand, these territories were, in fact, inhabited and not empty, and
the colonial powers had to enter into some kind of ‘diplomatic’ relations with the
inhabitants.

▪ Diplomatic relations = protectorate treaties.

▪ Implied a degree of sovereignty in the African territories

▪ Paradox because treaties can only be entered between sovereign States.


Legal justification for colonisation
▪ Since valid treaties can only come about between sovereign States, it raised questions
regarding the validity of such treaties.

▪ Remember the Berlin Act required a colonial power to gain control over a territory and
est an effective administration?

▪ To do this, the colonial power had to get the inhabitants to sign away their rights in or
control over the land or parts of it.

▪ However, this act of signing away such rights or control assumes the existence of a
sovereign power to do so, a power that the inhabitants were not supposed to have.

▪ How was this rationalised?


Legal justification for colonisation
▪ These contradictions were resolved in favour of the theory that the treaties that
European States concluded with African leaders were not genuine treaties in
international law since the African signatories were not real subjects in
international law.
▪ Consequently, these treaties were not binding in law but merely created moral
obligations for the parties

▪ If the treaties were not honoured, no legal consequences would follow (internal
matter)
Legal justification for colonisation
▪ In 1975, the terra nullius issue ended up before the ICJ in proceedings relating
to the granting of independence to Western Sahara by Spain.

▪ Morocco and Mauritania objected to the granting of independence to Western


Sahara by Spain arguing that Western Sahara belonged to them at the time
that the territory was colonised by Spain (late 19th century).

▪ A fact that Spain denied.

▪ The ICJ asked to determine whether Western Sahara, at the time of its
colonisation by Spain belonged to no one i.e. whether it was terra nullius.
Legal justification for colonisation
▪ The ICJ rejected the terra nullius argument at par 81 stating

“at the time of colonization Western Sahara was inhabited by peoples which, if nomadic,
were socially and politically organized in tribes and under chiefs competent to represent
them. It also shows that, in colonizing Western Sahara, Spain did not proceed on the basis
that it was establishing its sovereignty over terrae nullius. In its Royal Order of 26
December 1884, far from treating the case as one of occupation of terra nullius, Spain
proclaimed that the King was taking the Rio de Oro under his protection on the basis of
agreements which had been entered into with the chiefs of the local tribes.”
Legal justification for colonisation
▪ Regarding the agreements between a colonial power + local rules, the ICJ
pointed out at par 80:

“Whatever differences of opinion there may have been among jurists, the State practice of
the relevant period indicates that territories inhabited by tribes or peoples having a social
and political organization were not regarded as teirae nullius. It shows that in the case of
such territories the acquisition of sovereignty was not generally considered as effected
unilaterally through "occupation" of terra nullius by original title but through agreements
concluded with local rulers…”
Legal justification for colonisation
▪ ICJ confirmed the fictitious nature of the ‘occupation’ approach in the Berlin Act.
▪ Where there is no terra nullius, there can be no occupation in the true sense of
the word.
▪ Revealed fallacy in the thinking of the time regarding treaties concluded with
African rulers (not real, not enforceable)
▪ The understanding of the ICJ was that:
- Treaties were formal agreements between a colonial power and a ruler
capable and with the authority of representing the inhabitants of a territory.
- The nature of these treaties in international law is that non-observance would
amount to a breach of the treaty in international law.
Additional reading
▪ A Anghie “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-
Century International Law” Harvard International Law Journal 40 (2) 1999
pages 1 - 10.
The World Wars and thereafter
▪ Self-study!!

▪ Read for context pages 17 – 22 of your textbook

▪ Have an idea of the causes and consequences of World Wars I and II.

▪ Pay attention to the establishment of the United Nations (pages 23-24)

▪ Read for context: the Cold War between the East and West and the UN and
decolonisation.

▪ Pay attention to the rise of international organisations (pages 25 -26, 28 -29).

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