LAND & PROPERTY RIGHTS; IN THE AGE OF IMPERIAL-COLONIALISM

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The Neglected Colonial Root of the Fundamental Right to Property African Natives’ Property Rights in the Age of New Imperialism and in Times Thereafter Mieke van…
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The Neglected Colonial Root of the Fundamental Right to Property African Natives’ Property Rights in the Age of New Imperialism and in Times Thereafter Mieke van der Linden* Abstract 791 I. Introduction 792 II. New Imperialism, Treaty Practice and Property Rights 796 1. New Imperialism: Acquisition of Territory 796 2. Territorial Acquisition and Property Rights in Land 798 3. Treaty Practice and the Infringement of African Natives’ Property Rights 802 a) Treaties Establishing Protectorates 804 b) Protectorate and/or Colony? 806 c) Legality of Africa’s Colonization 810 d) Cession and the Continuity of Property Rights to Land 812 e) Protectorates and Continued Rights of Land Property? 814 III. Colonial Origins of Human Rights 815 1. New Imperialism, Sovereignty and Property 815 2. Africans’ Human Right to Land Property 817 3. The Dual World View: A Fiction 818 IV. Conclusions 820 Abstract This article sheds light on the emergence of human rights as a reaction to colonial suppression, as a response to the external vertical relation between colonizers and colonized. In other words, human rights were not only natu- rally evoked by peoples in the internal relation to their sovereign to protect themselves against his oppressive conduct. Human rights also have constitu- tive roots in the relationship between colonizers and colonized peoples – not only within but also between nations. The purpose of this article is to answer the question in which way New Imperialism, i.e., the acquisition * The author was researcher in legal history and international law at the research unit on Roman law and legal history, University of Leuven and is now affiliated as post-doctoral re- searcher to the Max Planck Institute for Comparative Public Law and International Law. This article has been written in the context of a FWO (Fonds voor Wetenschappelijk Onderzoek – Vlaanderen)-sponsored project. ZaöRV 75 (2015), 791-822 http://www.zaoerv.de © 2015, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 792 van der Linden and partition of Africa at the end of the 19th century, determined the human rights discourse of the 20th and 21st centuries. Territorial sovereignty and private landownership – imperium and dominium – play a crucial role in dealing with this question. The central argument is that, although develop- ments within the Western world were crucial for the emergence of modern human rights, the influence and determining role of the hierarchical relation between Europeans and Africans, in particular with regard to the funda- mental right to property, has to be recognized. Human rights, in other words, are not just an institution introduced by historical events in the West, based on liberal individualism; they originate in the encounter of na- tions, more specifically, in the confrontation between the West and other parts of the World too. Therefore, it will be argued that the “scramble for Africa” can be considered as not only constitutive for public international law; it also determined the nature and evolution of human rights law in the 20th and 21st century. Individuals and political entities from beyond contrib- uted to the human rights discourse by way of them being confronted with people from the West. The article’s aim is to show that the origins of human rights are spread and divided over time, that they are not a static given and that they evolve depending on their historical contextualization and their interpretation and application in theory and practice. In this sense, the ori- gins of human rights are a matter of both continuity and discontinuity. I. Introduction Human rights, as a derivation of natural law, “create an area of freedom where human beings may act in an autonomous fashion, without being en- meshed in an oppressive regime of orders and prohibitions”, as Christian Tomuschat describes human rights.1 “Such a kind of freedom will be used not only for the furtherance of the individual interest, but also for the gen- eral weal.”2 Human dignity is to be preserved and realized by upholding the core values of equality, inalienability and universality. To use the wording of the Universal Declaration of Human Rights (1948), human rights concern the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” and form “the foundation of freedom, justice and peace in the world”.3 While human beings are entitled 1C. Tomuschat, Human Rights: Between Idealism and Realism, 2nd ed. 2014, 6. 2C. Tomuschat (note 1). 3 Preamble of the Universal Declaration of Human Rights (1948), available at: <http:// www.un.org> (accessed on 2.5.2013). ZaöRV 75 (2015) http://www.zaoerv.de © 2015, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht The Neglected Colonial Root of the Fundamental Right to Property 793 to the rights, the duties accompanying the realization of human rights form the burden of States and their institutions and agents. And, nowadays, we observe an emerging field of good practices and responsibility of private legal persons such as transnational and multinational corporations in the protection and realization of human rights. Traditionally, the assertion is made that human rights are a Western construct having their origins in the historical events and developments such as Magna Carta (1215), the En- lightenment period of the 17th and 18th centuries, the American Revolution of the 18th century, the French Revolution (1789), and ultimately, the en- actment of the Universal Declaration of Human Rights (1948).4 In these historical contexts, human rights emerged as a weapon against the suppres- sion of subjects by their sovereign. The creation and evolution of human rights as a consequence of the encounter of nations from the Western world and those from the world beyond is, however, often overlooked. This article sheds light on the emergence of human rights as a reaction to colonial sup- pression, as a response to the external vertical relation between colonizers and colonized. In other words, human rights were not only naturally evoked by peoples in the internal relation to their sovereign to protect themselves against his oppressive conduct. Human rights also have constitu- tive roots in the relationship between colonizers and colonized peoples – not only within but also between nations. In opposition to Samuel Moyn’s argument which adheres to the idea of a discontinuous nature of human rights and that this disruptive moment was in the 1970s, marking a decisive shift in the development of human rights – already freed of their exclusive connection to revolution after 1945 – in that they became really “interna- tional”,5 the article shows that the constitutive international nature of hu- man rights is also a continuous process6 and already appeared in the earlier 4 See A. Pagden, Human Rights, Natural Rights, and Europe’s Imperial Legacy, Political Theory 31 (2003), 171 et seq. 5 S. Moyn, The Last Utopia. Human Rights in History, 2012. Anti-colonialism, according to Moyn, formed the context for the “ideological conditions in which human rights in their contemporary connotations became a plausible and globalizing doctrine after the mid-1970s”. S. Moyn, Imperialism, Self-determination, and the Rise of Human Rights, in: A. Iriye/P. Goedde/W. I. Hitchcock (eds.), The Human Rights Revolution. An International History, 2012, 161. 6 See, e.g., A. Haratsch, The Development of Human Rights in International Law, in: T. Marauhn/H. Steiger (eds.), Universality and Continuity in International Law, 2011, 508 et seq.: “In the same manner as the breakthrough of the national protection of human rights during the turmoil of the revolutions of the 18th century has to be understood as a reaction to the absolutistic regime, the evolvement of human rights protection in international law by the middle of the 20th century is based on tangible experiences made under the perverse abuse of the States’ power.” ZaöRV 75 (2015) http://www.zaoerv.de © 2015, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 794 van der Linden times. To make this claim tangible, it will be temporally and spatially con- textualized in the acquisition and partition of Africa at the end of the 19th century, the so-called Age of New Imperialism. Imperialism, in general, concerns the relation between European powers and subjected land and peoples. 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”.7 19th-century imperialism was called “new” because it followed-up the first colonization wave of the 16th and 17th centu- ries, but was different in kind in comparison to the earlier territorial expan- sions. The purpose of this article is to answer the question in which way New Imperialism, i.e., the acquisition and partition of Africa at the end of the 19th century, determined the human rights discourse of the 20th and 21st centu- ries. Territorial sovereignty and private landownership – imperium and do- minium – will play a crucial role in dealing with this question. The central argument is that, although developments within the Western world were crucial for the emergence of modern human rights, the influence and deter- mining role of the hierarchical relation between Europeans and Africans, in particular with regard to the fundamental right to property, has to be recog- nized. Human rights, in other words, are not just an institution introduced by historical events in the West, based on liberal individualism; they origi- nate in the encounter of nations, more specifically, in the confrontation be- tween the West and other parts of the world too. Therefore, it will be ar- gued that the “scramble for Africa” can be considered as not only constitu- tive for public international law; it also determined the nature and evolution of (international and domestic) human rights law in the 20th and 21st centu- ry.8 In particular, the right to property of land will be elaborated on, be- cause this right is fundamental, as will be argued, to the recognition of hu- man being and human dignity. Human rights are not just a Western con- struct, but are developed in relation to other parts of the world too. In this respect, the statement of José-Manuel Barreto has to be underlined: “If hu- man rights are not a ‘gift of the West to the rest’ it is possible to see that they are an endowment of the Non-West to the world as well.”9 Individuals 7 B. Cohen, The Question of Imperialism: The Political Economy of Dominance and De- pendence, 1974, 16. 8 For an elaborative discussion on the relation between imperialism and the emergence of human rights of the European continent, see A. W. B. Simpson, Human Rights and the End of Empire. Britain and the Genesis of the European Convention, 2001. 9 J.-M. Barreto, Decolonial Strategies and Dialogue in the Human Rights Field: A Mani- festo, Transnational Legal Theory 3 (2012), 26. See also L. Camp Keith/A. Ogundele, Legal Systems and Constitutionalism in Sub-Saharan Africa: An Empirical Examination of Colonial ZaöRV 75 (2015) http://www.zaoerv.de © 2015, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht The Neglected Colonial Root of the Fundamental Right to Property 795 and political entities from beyond contributed to the human rights dis- course by way of them being confronted with people from the West. The hierarchical relation to which African natives were subjected triggered, so to say, the awareness, emergence and articulation of human rights.10 To be clear, the article will not choose sides in the “continuity vs. discontinuity debate” on the origins of human rights.11 It’s aim is to show that the origins of human rights are spread and divided over time, that they are not a static given and that they evolve depending on their historical contextualization and their interpretation and application in theory and practice. In this sense, the origins of human rights are a matter of both continuity and discontinui- ty. First, a closer look will be paid to the acquisition of and entitlement to territory within the context of New Imperialism. Treaties of cession be- tween and the establishment of protectorates by Europeans and African na- tives formed the main mode employed by the Europeans to acquire sover- eignty rights over African territory (§ 2.1). In this light, the relation be- tween territorial acquisition and property rights in land will be dealt with (§ 2.2). Then, the European treaty practice will be addressed in connection to the question whether African natives’ property rights were infringed (§ 2.3). Subsequently, the colonial roots of human rights in relation to current in- ternational law are discussed in the context of imperialism, European sover- eignty and African property (§ 3). Finally, the main arguments will be summarized and conclusions will be drawn (§ 4). Influences on Human Rights, HRQ 29 (2007), 1065 et seq.; A. L. Conklin, Colonialism and Human Rights, a Contradiction in Terms? The Case of France and West Africa, 1895-1914, American Historical Review 103 (1998), 419 et seq.; J. Donnelly, Human Rights: A New Standard of Civilization?, Int’l Aff. 74 (1998), 1 et seq. and B. Ibhawoh, Imperialism and Human Rights, 2007. 10 For the 1960s and 70s, see Chapter 3 on “Why Anticolonialism Wasn’t a Human Rights Movement” of S. Moyn’s, Last Utopia (note 5). 11 See P. Alston, Does the Past Matter? On the Origins of Human Rights, Harv. L. Rev. 126 (2013), 2043 et seq.; M. A. Glendon, A World Made New, 2001; J. M. Headley, The Euro- peanization of the World: On the Origins of Human Rights and Democracy, 2007; L. Hunt, Inventing Human Rights: A History, 2008; A. Iriye/P. Goedde/W. I. Hitchcock (eds.), The Human Rights Revolution. An International History, 2012; J. Martinez, The Slave Trade and the Origins of International Human Rights, 2012; S. Moyn, Last Utopia (note 5) and B. Tier- ney, The Idea of Natural Rights. Studies on Natural Rights, Natural Law and Church Law, 1997. ZaöRV 75 (2015) http://www.zaoerv.de © 2015, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 796 van der Linden II. New Imperialism, Treaty Practice and Property Rights 1. New Imperialism: Acquisition of Territory Africa was one of the main battlefields during the Age of New Imperial- ism. In the “Scramble for Africa”,12 at the end of the 19th century and the beginning of the 20th century, several European powers collided in their ambitions to seize territory. The main actors in this competition were Great Britain, France, Belgium and Germany, but also 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; including religious, values. During the Age of New Imperialism (1870-1914), European powers added almost thirty million square kilometres of African land to their over- seas colonial empires. After the Conference of Berlin (1884-1885),13 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 dis- turbed, split up and assimilated to European civilization. Each European power had its own means and strategies to achieve its targets and objects on the territory of Africa. Nevertheless, in many cases, the arrival of the Euro- peans did not start off with conquest and subordination, but with various kinds of interactions with the indigenous people(s) and their rulers, which were based on equality or even on a subordinate position of the Europe- ans.14 What in the end distinguished New Imperialism from the former pe- riod of European colonization are the dominant senses of nationalism, pro- tectionism and, thus, competition resulting in the scramble for Africa, in which the whole continent was brought under the rule of the European col- onizing powers; territorial occupation expanded from settlements and trade posts on the coast to the Hinterland, the interior of Africa. From an inter- national legal perspective, this raises the question of the mode(s) of acquisi- tion of and the legal entitlement to territory. 12 See T. Pakenham, The Scramble for Africa, 2009. 13 For a detailed report on the Conference of Berlin, see S. Förster/W. J. Mommsen/R. E. Robinson, Bismarck, Europe, and Africa, 1988. 14 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/J. A. de Moor (eds.), European Expansion and Law, 1992, 20. See also C. H. Alexandrowicz, The Eu- ropean-African Confrontation. A Study in Treaty Making, 1973 and R. C. H. Lesaffer, Ar- gument from Roman Law in Current International Law: Occupation and Acquisitive Pre- scription, EJIL 16 (2005), 25 et seq. ZaöRV 75 (2015) http://www.zaoerv.de © 2015, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht The Neglected Colonial Root of the Fundamental Right to Property 797 The major part of the African territory was acquired by the Europeans by the conclusion of cession and protectorate treaties with African native rulers. In respect of the practice of the acquisition of Africa by treaty, two general conclusions have to be drawn.15 First, the provisions on the ob- servance of natives’ proprietary rights to land included in the cession trea- ties were disrespected by the European colonizing power. In theory, the Eu- ropean State which acquired all-comprehensive sovereignty over territory had the capacity to allocate and control land and proprietary rights thereto. In practice, existing rights to land were neglected and natives were dispos- sessed, which was not permitted according to the letter and nature of ces- sion treaties. Second, protectorate treaties were denaturalized – the tradi- tional protectorate disappeared and the colonial protectorate was intro- duced – and used as “springboards to annexation”16 by the European “pro- tector”. Protectorate treaties became the most important instrument to ac- quire in first instance external and then internal sovereignty rights over a territory, which was recognized by 19th-century doctrine and politics. Not only issues with regard to external relations and defence, but also internal affairs became part of the European State’s jurisdiction. In this light, the co- lonial protectorate as an instrument in the hands of politicians – an Act of State not being eligible to judicial review – proved to conflict with the actual meaning and content of the traditional protectorate. In the case of the estab- lishment of protectorates by treaty, the compelling question is whether Eu- ropean contracting powers breached their treaty obligations. The cession and protectorate treaties concluded in the Age of New Impe- rialism have a constitutive nature for the international world order and legal system as it stands today. Especially Antony Anghie supports this view, when he states that “colonialism was central to the constitution of international law – including, most importantly, sovereignty doctrine – were forged out of the attempt to create a legal system that could account for relations between the European and non- European worlds in the colonial confrontation”.17 15 For an extensive analysis and assessment of the conclusion of cession and protectorate treaties between Europeans and Africans at the end of the 19th century, see M. van der Linden, The Acquisition of Africa (1870-1914): the Nature of Nineteenth-Century International Law, Diss. 2014. 16 C. H. Alexandrowicz (note 14), 111. 17 A. Anghie, Imperialism, Sovereignty and the Making of International Law, 2005, 3
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