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C OL O N I A L I S M A N D
D O M I N AT IO N
m atthew c raven
(^1) See generally, A Anghie Imperialism, Sovereignty and the Making of International Law (CUP Cam-
bridge 2004 ); C Mieville Between Equal Rights: A Marxist Theory of International Law (Brill Leiden 2005 ) ; J Fisch Die europäische Expansion und das Völkerrecht (Steiner Stuttgart 1984 ); WG Grewe The Epochs of International Law (M Byers trans) (De Gruyter Berlin 2000 ); M Koskenniemi The Gentle Civiliser of Nations: The Rise and Fall of International Law 1870 – 1960 (CUP Cambridge 2002 ). (^2) R Tuck The Rights of War and Peace: Political Thought and the International Order from Grotius to
Kant (OUP Oxford 1999 ) at 79.
1. Introduction
To speak today of the ‘colonial origins of international law’ is arguably no longer a
standpoint of dissent, or of a radical revisionism, but one which is situated in the
centre-ground of accounts of international legal history. 1 What is made of that obser-
vation is a matter upon which there remains a not insignificant divergence of opin-
ion, but a consciousness that the emergence of the European states-system in the
post-Westphalian era was not merely incidentally related to the expansion of mer-
cantile empires and the taking of colonial possessions, but was rather intimately con-
nected with it, is one that is widely shared. It is no longer possible to read Grotius
without attending to the fact that much of his work seemed to be written as an ‘apol-
ogy for the whole Dutch commercial expansion into the Indies’,^2 or engage with the
colonialism and domination
historic formation of notions of war, sovereignty and territory and not notice the role
they assumed in the violent expansion of European empires.
At certain points of time, of course, the relationship between the development of
nascent legal doctrine and the practice of colonial rule has been entirely transparent. Just
as Vitoria’s famous lectures from 1532 — De Indis Noviter Inventis and De Jure Bellis His-
panorum in Barbaros^3 —addressed themselves to the titles the Spanish put forward in
order to justify their domination in the New World, so also, some 360 years later, West-
lake, Martitz, Hornung, and other members of the newly-formed Institut de Droit Inter-
national were to debate the terms under which territory in Africa might be brought
under colonial rule.^4 On other occasions, and far more frequently, colonialism has
remained a significant background theme, providing the setting for doctrinal debates
over freedom of the high seas, the use of force, title to territory, recognition, and state-
hood. Dealing with its legacy, of course, was also a central preoccupation in the 20 th
century both informing institutional initiatives (mandates and trusteeships) and emer-
gent doctrine such as that relating to self-determination, sovereignty over natural
resources, human rights, the law of armed conflict, state succession, and the boundary
delimitation ( uti possidetis iuris ). There is, it might be suggested, scarcely a single area of
international law that has not, in some manner or other, been informed by this history.
Yet even if there is broad concurrence in the view that the history of international
law is intimately related to the history of colonial rule, there is, as I have already sug-
gested, considerably less agreement over ‘how’ one may plausibly articulate, or
account for, that relationship. For some, the relationship is almost an incidental
one—the expansion of European empires and the development of international law
being the product of an intra-European rivalry whose centre of gravity remained
firmly European.^5 For others, the relationship is taken to be far more central, but here
again the contrasts are marked. For Tony Anghie, for example, European interna-
tional law not only provided a means of legitimizing imperialism, but was also
profoundly shaped by that encounter, encoding within its disciplinary structures
(especially sovereignty) the discriminatory features of cultural difference. 6 For China
Mieville, by contrast, colonization was to be understood not so much in terms of its
content, but in terms of the imperialism of its form:
Colonialism is in the very form, the structure of international law itself, predicated on global
trade between inherently unequal polities, with unequal coercive violence implied in the
very commodity form. This unequal coercion is what forces particular content into the legal
form.^7
(^3) F De Victoria De Indis et De Iure Belli relectiones (E Nys ed) (Carnegie Institution Washington 1917 ). (^4) See The Gentle Civiliser of Nations (n 1 ) 149 – 52. (^5) Eg The Epochs of International Law (n 1 ); C Schmitt The Nomos of the Earth (Telos Press Publishing
New York 2006 ). (^6) Imperialism (n 1 ) 6 – 7. (^7) Between Equal Rights (n 1 ) 178.
colonialism and domination
In concrete terms, thus, I want to draw attention to two aspects of this history: one
being the slow accretive process by which ideas of sovereignty were to form and mutate
during the period between 1500 and 1900 —from a notion of sovereign authority cen-
tred upon the coercive authority of the monarch, to the modern imagination of the
‘nation-state’. The other being the parallel transition from a post-feudal mercantile
economy to one centered (in Europe at least) upon industrial production and finance
capital. In its most raw terms, the argument is that this history may be understood,
albeit somewhat schematically, in terms of a shift in the conceptualization of the jurid-
ical politics of space from one marked by the notion of dominium to that of imperium.
Dominium and imperium of course being seen operate here not merely as the juridical
brackets that frame the ‘colony’, but also as having direct relationship to their etymo-
logical counterparts—domination on one side, and empire on the other.
2. Discovery and Conquest
For nearly a century prior to Columbus’ voyage to the Americas, the Crowns of Cas-
tile, and Portugal had been sponsoring expeditions down the West Coast of Africa to
the Canary Islands, Cape Verde, and the Azores, the overt purpose of which was to
locate a direct source for the gold, spices, and silk whose supply had hitherto been
dominated by the Arab traders and the merchants of Venice and Genoa. In the proc-
ess, they had routinely sought, in accordance with the spirit of the reconquista , the
blessing of the pope 11 and had respectively been rewarded with the authorization, in
accordance with the stipulations of Hostiensis, to ‘search out and conquer all pagans,
enslave them and appropriate their lands and goods’.^12
Columbus’ voyage in search of an alternative route to the East Indies was not, in
that sense, novel. Nor indeed was the subsequent involvement of the pope who was
called upon to ‘arbitrate’ between the respective Castilian and Portuguese claims to
the territory subsequently ‘discovered’. Yet Pope Alexander VI’s famous inter caetera
divinae of 4 May 1493 (the fourth of five) was significant nevertheless. According to
the Bull, the Pope purported to ‘give grant and assign’ to the kings of Castile and Leon
in perpetuity exclusive jurisdiction over ‘all... remote and unknown mainlands and
islands… that have been discovered or hereafter may be discovered by you or your
envoys’ lying west of a line running from Pole to Pole 100 leagues west of the meridian
(^11) FG Davenport European Treaties Bearing on the History of the United States and its Dependencies
(Carnegie Institution Washington Washington DC 1917 ) vol 1 , at 11 ; E Nys Les Origines du Droit Interna- tional (Thorin Paris 1894 ) at 284 – 6. (^12) ‘The Bull Romanus Pontifex (Nicholas V.), 8 January 1455 ’ in European Treaties (n 11 ) 9 – 26 at 12.
interaction or imposition
of the Azores and Cape Verde. 13 If the demarcation seemed clear enough, it was
clouded by the fact that it excluded those territories already under the jurisdiction of
other Christian powers, and was also silent on the question of Portuguese jurisdic-
tion to the east. The two powers were thus forced to seek agreement as to their respec-
tive dominions—the subsequent Spanish-Portuguese Treaty of Tordesillas ( 7 June
1494 )^14 diving the world again along the same lines, but a little further to the West. A
further treaty was also required—the Treaty of Saragossa ( 1529 )—to identify the
respective line in the Pacific in which, incidentally, the much treasured Spice Islands
(the Moluccas) were effectively ‘sold’ by Spain to Portugual for 350 , 000 ducats.^15
These events themselves were revealing enough: in the first instance, whilst the
involvement of the Pope seemed to signal the residual authority of the papacy as the
moral and political centre of the late-medieval respublica Christiana , the subsequent
agreements, by contrast, not only heralded its decline as the ultimate author of claims
to power and jurisdiction, but marked the increasingly disputatious character of
claims to overseas dominions brought about by the expansion of long-distance mer-
cantile trade. The formalities of the Papal grant, even if important in signifying the
persistence of a latent theological structure in international legal thought, was only
the beginning of the story (as the subsequent claim to the establishment of New
France by Francis I amply demonstrated). Apart from anything else, any such grant
was made explicitly dependent upon the symbolic appropriation of land by subse-
quent acts of ‘discovery’ and occupation.
In the second place, the divisional lines that were put in place ( rayas ) were not, as
Schmitt points out, lines separating the realm of Papal authority from that which was
beyond his sway, but were rather global lines operating as ‘internal divisions between
two land-appropriating Christian princes within the framework of one and the same
spatial order’. 16 In this sense the Inter caetera divinae departed from the earlier lines
that had been drawn in 1443 and 1456 that extended only usque ad indos , and affirmed
an outlook which was to bring the entirety of the globe within the contemplation of
(European) political authority. Thirdly, it was to signal a good deal about the prevail-
ing conception of political authority that was to undergird such acquisitions. That
the Pope purported to ‘gift, grant, or assign’ the territories in question to the Kings of
Leon and Castile was to look back in an obvious sense to a mediaeval theological
universe of Papal authority, to feudal notions of investiture 17 and to the crusading
mandate that had underpinned the reconquista. It also, however, looked forwards
towards the emergence of a patrimonial conception of territorial sovereignty in
which Roman civil law notions of property ( dominium ) came to structure notions of
(^13) European Treaties (n 11 ) 64 and 68. (^14) ibid 84. (^15) ibid 146 and 169. (^16) The Nomos of the Earth (n 5 ) 92. (^17) See The Epochs of International Law (n 1 ) 231 – 2.
interaction or imposition
The Spaniards may lawfully trade among the native Indians, so long as they do no harm to
their country, as for instance, by importing thither wares which the natives lack, and by
exporting thence either gold or silver or other wares of which the natives have in abundance.
Neither may the native princes hinder their subjects from carrying on trade with the Span-
ish; nor, on the other hand, may the princes of Spain prevent commerce with the natives. 24
If, then, the natives were to prevent the Spanish from enjoying such rights of travel or
commerce, the Spanish would be entitled to ‘defend themselves’ by force, to build
fortresses and, ultimately, wage war, seize cities and provinces by way of retribution. 25
The same would be the case, he suggests if the Indians were to prevent the Spanish
from preaching the Gospel. 26
As has been suggested elsewhere, whilst Vitoria articulated these as universal
principles he does not appear to have had in mind the possibility that the Indians,
for their part, might avail themselves of similar rights. 27 Certainly as far as the
preaching of the gospel goes, it was almost inconceivable that the Moors or Saracens
would have the same right to wage war in defence of their faith.^28 Yet in some ways
what is more revealing is the emphasis he places upon the institutions of commerce
and property rather than those of Christianity. If faith, and the dominion of the
Pope, could not serve as the governing conditions for relations with the non-Chris-
tian world, then some other framework of analysis needed to be set in its place. And
Vitoria’s choice here—to imagine a world of individual and communal property
rights through which one could address almost all relevant questions (from the
implications of discovery to the legitimacy of conquest)—was significant in two
different ways.
In the first place, Vitoria’s imagined world was not a purely hypothetical one, but
in many senses reflected a pre-existent reality. The global circuits of trade which had
for several centuries brought to Europe the gold, silk, and spices in search of which
Columbus had crossed the Atlantic,^29 was only comprehensible if one started from an
understanding of a global diviso rerum enabling the sequence of transactions and
exchanges to take place.^30 Commerce, more than anything else, pushed attention
towards the conditions under which both individuals and princes might claim to
‘own’ that which they found in their possession. And this, of course, not only chal-
lenged received precepts of Christian thought (the prohibition on usury, the belief
that ‘God made everything to be owned by all’), but was a concern that was to subse-
quently occupy jurists and political theorists such as Grotius and Locke for another
few centuries.
(^24) ibid 152. 25 ibid 154 – 6. 26 ibid 157. (^27) See Imperialism (n 1 ) 26 – 7 ; The Role of International Law (n 8 ) 8. (^28) Second Relectio (n 22 ) 173. (^29) See The Wheels of Commerce (n 18 ) 114 – 34 ; JL Abu-Lughod Before European Hegemony (OUP New
York 1989 ). (^30) See generally M Koskenniemi ‘Empire and International Law: The Real Spanish Contribution’
( 2011 ) 61 University of Toronto Law Journal 1 – 36 at 16 – 29.
colonialism and domination
In the second place, just as Vitoria seemed to open out an entirely new imperial
vision in which the emphasis was placed upon the ‘informal’ control of resources
through private-law relationships of property and exchange rather than formal
annexation,^31 it was also a vision resonant of a distinctively feudal imaginary. Whilst
Vitoria understood that the conditions of political-legal coercion were centralized in
the hands of the prince (in the sense that only sovereigns in his view could authorize
the waging of war), and whilst the ruler was not entitled to intervene in his subjects
enjoyment of private property (except for purposes of the common good), it was
nevertheless not the case that political and economic power were yet entirely sepa-
rated. Authority and possession remained intertwined through a conception of
dominium that was understood to be both public and private, 32 encompassing mat-
ters of both jurisdiction and ownership. As he was to suggest in his Second Relectio:
[E]ven if we assume that the Indian aborigines may be true owners, yet they might have
superior lords, just as inferior princes have a king and some kings have the Emperor over
them. There can in this way be many persons having dominion over the same thing ; and this
accounts for the well-worn distinction drawn by the jurists between dominion high and low,
dominion direct and available, dominion pure and mixed.^33
It was thus possible to conceptualize the jurisdiction of the prince being exercised
over his domain in a manner entirely analogous to that exercised by the lord over his
manorial possessions, just as it had formerly been possible to envisage the dominions
of the prince to be subordinate to the temporal ‘dominion’ of the Pope. All were, in a
way, a seamless part of the same order, within which the (putatively) private institu-
tion of property remained entwined. And in the same respect, Vitoria seemed to be
reflecting upon the semi-feudal character of Spanish colonial enterprise itself. The
capitulaciones which structured the relationship between the conquistadors and the
Spanish crown—in which the colonists were granted land, booty, and titles in return
for of tax revenues and fees—envisaged, in effect, the creation of an ‘empire of trib-
ute’^34 in which authority would be vested in a local landed elite who would organize
the administration of their petty fiefdoms through a feudal land tenure system in
which natives were assigned to estates (the economienda ) and threatened with slavery
if they failed to fulfil the conditions of the requirement. 35 That the Spanish Crown
subsequently developed an extensive colonial bureaucracy, monopolizing transat-
lantic trade through the Casa de Contratación and regulating the economienda system
and the trade in slaves was only, arguably, a function of the degree to which spatial
disaggregation threatened to sever the ties of loyalty upon which the entire system
depended.
(^31) ibid 32. (^32) First Relectio (n 21 ) in De Indis (n 3 ) 128. (^33) ibid 130 (emphasis added). (^34) R Blackburn The Making of New World Slavery (Verso London 2010 ) at 129 – 34. (^35) E Wood Empire of Capital (Verso London 2003 ) at 42.
colonialism and domination
East Indies. 41 The French commissioners were to emphasize this point whilst nego-
tiating the Treaty of Cateau-Cambresis of 1559 , 42 as did the British 43 and Dutch in the
terms of the letters patent or Charters granted to their own explorers. The letters
patent granted to Cabot by Henry VII, 44 and Gylberte by Elizabeth I, 45 as with the
General Charter issued by the states-General of the United Netherlands in 1614 , 46
merely limited the respective grants by reference to land already occupied by another
Christian power. Increasingly, thus, even if Spanish dominion within parts of the
West Indies had to be taken as a fait accompli, the grounds upon which claims to
dominion might be based were increasingly narrowed. Discovery could no longer
suffice in itself—particularly if it merely involved the symbolic planting of stones or
the erection of flags. 47 Actual occupation was needed in order to justify the limita-
tions that were otherwise being placed upon the ‘right of commerce’, 48 and this
theme was to become central to the subsequent discourse that premised title upon
the effective use of land.
In the second place, since mercantilism took as its starting point the notion of
national wealth understood in aggregate terms, not only was it blind to the internal
distribution of wealth, but also encouraged an association between the interests and
material wealth of the merchant class and the nation as a whole. This was, indeed, to
find institutional recognition in the development of the chartered trading companies
(the first of which being the Muscovy Company of 1555 ) whose role in colonial expan-
sion over the following two centuries would be critical. Whilst trading partnerships
had long been a staple feature of overseas trade, the chartered companies were inno-
vative politico-economic amalgams: constituted on one side as joint-stock compa-
nies^49 but also endowed, on the other, with public prerogatives—generally rights of
monopoly, but not infrequently rights to conquer and colonize. It was arguably by
means of these public prerogatives that companies such as the East India Company
( 1600 ) the London and Plymouth Companies ( 1606 ), and Dutch East India Com-
pany ( 1604 ), to name but a few, were to increase the size of the respective Dutch and
British overseas possessions enormously. The apparent ‘harmony of interests’ 50 upon
which such arrangements rested, however, had certain consequences. In the first
instance it was obviously to obscure the distinctions made by those such as Gentili
(^41) A Pearce-Higgins ‘International Law and the Outer World 1480 – 1648 ’ in J Holland Rose and others
(eds) Cambridge History of the British Empire (CUP Cambridge 1929 ) vol I, 183 – 4. (^42) European Treaties (n 11 ) 219 – 21. (^43) The Ideological Origins (n 8 ) 107 – 8. (^44) Letters Patent, 3 February 1498. (^45) Letters Patent, 11 June 1578. (^46) M Brumbaugh and J Walton (eds) Inducements Offered by the States General of Holland to Settlers
on the Hudson (Christopher Sower Philadelphia 1898 ) at 4 – 5. (^47) The Nomos of the Earth (n 5 ) 131. (^48) The Epochs of International Law (n 1 ) 249 – 50 and 396. (^49) The Wheels of Commerce (n 18 ) 439 – 55. (^50) cf EH Carr The Twenty Years’ Crisis 1919 – 39 (Macmillan London 1940 ) at 42 – 61.
interaction or imposition
between public and private war, between piracy and privateering, and between pub-
lic and private property.^51 Just as Vitoria had imagined the conquistadors to be, at one
moment, private merchants exercising rights of travel and trade, and at another, the
enforcers of public right, so also Grotius was later to advocate, in his de jure praedae ,
a right on the part of individuals (and private companies of course) to resort to vio-
lence in punishment of ‘wrongs’. That this meant that private trading companies
were entitled to aggressively pursue their commercial interests in the East Indies, and
engage in hostilities and secure prize if they were unjustifiably prevented from doing
so, 52 was only such as to reflect upon the fact that the distinctions in question (between
public war and private enterprise) had yet to be made meaningful. That the same
putative ‘harmony of interest’ was later to have the consequence of potentially bring-
ing the entire imperial project into disrepute—most critically exemplified perhaps
by the celebrated impeachment of Warren Hastings, India’s Governor-General, at the
hands of Burke 53 —was only an indication of the subsequent movement here in which
the idea of ‘public corruption’ came to signify the (advocated) separation between,
on the one hand, the exercise of duties of public office and, on the other, the accrual
of private wealth.
In the third place, the focus on overseas trade also directed attention towards its
necessary conditions, and in particular, to the status of the high seas and the naviga-
tion routes that provided access to the new markets. Whilst there had long been dis-
putes over the control of European maritime zones (the Adriatic, the Baltic, the
Ligurian sea, or the Oceanus Brittanicus ), the Papal Bulls upon which Spain and Por-
tugal based their claims only occasionally made mention of occupation or jurisdic-
tion over the seas. In contrast to Nicholas V’s Romano Pontifex of 1455 which granted
to the crown of Portugal exclusive rights in relation to the Guinea trade including the
right to exercise exclusive jurisdiction in relation to both the land and sea, the Inter
Caetera edict, had merely prohibited the undertaking of voyages to the Indies with-
out permission of the Crown of Castile. 54
The debate that was to ensue following the publication of Grotius’ Mare Liberum
in 1609 was conducted at two different levels. On one level, and that which specifically
informed the work of Selden, 55 his English interlocutor, the question seemed to be
that of the possibility of enclosure in which rights over proximate maritime resources
(principally fish) and local security were at the forefront. In Grotius’ own terms, how-
ever (and that of de Freitas 56 his Portuguese critic), the question was more directly
(^51) A Gentili De Iure Belli Libri Tres ( 1612 edn JR Rolfe trans) (Clarendon Press Oxford and Milford
London 1933 ) vol II, at iii and 15. (^52) The Rights of War and Peace (n 2 ) 79 – 90. (^53) See generally, NB Dirks The Scandal of Empire: India and the Creation of Imperial Britain (Belknap
Press Cambridge MA 2006 ). (^54) European Treaties (n 11 ) 72 – 4. (^55) J Selden Mare Clausum (excudebat Will. Stanesbeius, pro Richardo Meighen London 1635 ). (^56) S de Freitas De justo imperio Lusitanorum Asiatico ( 1627 ).
interaction or imposition
from distinct: just as the mercantile communities saw as their enemy the monopolies
and barriers to trade that ensued from (foreign) colonial rule or patrimonial claims
over the seas, so also was it evident that advocacy of free navigation tended to coalesce
in those places in which maritime strength would ensure eventual monopolistic con-
trol. The change in stance of the English crown in relation to the enclosure of the high
seas, on that score, perfectly accords with the growing strength and size of its merchant
fleet. 63 What was, perhaps, of more significance was the emergence of the ‘sea’ as a
law-governed domain, in which absent outright ownership, the maritime powers
increasingly sought to exercise powers of police—evidenced, in one direction by the
subsequent enclosure of the territorial sea and, in another, by the increasing exercise
of superintendent powers over the high seas whether under the Portuguese cartaz (a
17 th-century version of the navicert)^64 or more generally in relation to piracy and
slavery.^65
4. Settler Colonialism
If, as has been suggested, one side of mercantilist thought was largely concerned with
external trade, the other side focused upon the problem of enhancing the local condi-
tions of production—of putting the population to work (through the regulation of
migration and vagrancy and the introduction of ‘poor laws’), controlling what would
be produced (through subsidies and land regulation) and maximizing the produc-
tive output of land (through new agricultural techniques). This not only brought, as
Foucault suggests, the population as a productive resource within the boundaries of
governmental activity, 66 but also had its implications for the use of land. If the
productive output of land itself had to be maximized it was a proposition which
found its immediate expression in the long history of enclosures in England, and
elsewhere in Europe, in which common land was given over to private ownership in
order to be made more productive. 67 That the ‘improvement’ of land had impelled
the dispossession of an agrarian population in England was to have particular signifi-
cance for the development of settler colonialism in the 17 th century—and not merely
insofar as it provided the motive and means for such settlement (specifically the
(^63) One may note, here, the critical change in position adopted by the British at the end of the 17 th
century. See The Nomos of the Earth (n 5 ) 177 – 8 ; The Ideological Origins (n 8 ) 100 - 124. (^64) Freitas Versus Grotius (n 40 ) 176 – 80. (^65) See generally L Benton A Search for Sovereignty (CUP Cambridge 2010 ) at 104 – 61. (^66) Security, Territory, Population (n 10 ) 67 – 9. (^67) See K Polanyi The Great Transformation (Beacon Press Boston 1957 ) at 34 – 8.
colonialism and domination
existence of a dispossessed ‘surplus’ agrarian population who would settle in the col-
onies as indentured servants), but also its intrinsic rationality.
Settler colonialism as it was to develop in the hands of the British and Dutch in
the early part of the 17 th century differed from the earlier mercantile colonialism of
the Portuguese insofar as it was concerned not merely with the establishment of
local trading stations, but with the expansion of the dominion of the State and the
volume of its productive land. 68 Sped by the appearance of new class of colonial
merchants seeking to secure control over the production of sugar or tobacco, 69 the
new settlements and plantations in the West Indies, Virginia, New England, and
New Netherlands were thus, in the first instance, stations for production and con-
sumption: they were to be supplied with (slave) labour, equipment, and an appara-
tus of security, 70 and would contribute to the general economic prosperity both by
the consumption of produce from the imperial centre, and through the supply of
new materials. Their integration within the metropolitan political-economy, how-
ever, was always dependent upon the latter’s control over trade—in the case of the
British, for example, through the sequence of Navigation Acts from 1651 onwards—
and this increasingly became the principle source of tension as the conditions of
self-government intensified. Yet if the central idea was to settle and expand the
dominions of the State, the operative means for doing so was not immediately
understood in terms of straightforward conquest or annexation. 71 Rather it was
through the technology and practice of individual land appropriation (or what
Marx called ‘primitive accumulation’).
The early charters granted to settlers in the Americas were, on the face of it, pro-
foundly paradoxical. In one sense they were little more than feudal land grants faintly
premised upon the idea that Christianity and civilization would be bought to the
natives. 72 The first Charter of Virginia granted by James I, for example, authorized the
settlers ‘to make habitation, plantation and deduce a colony’ on lands or islands that
are ‘either appertaining to us, or which are not now actually possessed by any Chris-
tian prince or peoples’. The terms of the ‘grant’ declared that ‘they shall have all the
Lands, Woods, Soil, Grounds, Havens, Ports, Rivers, Mines, Minerals, Marshes,
Waters, Fishings, Commodities, and Hereditaments’ 73 that subsist within fifty miles
of each settlement, and that land was to be held under common socage with one fifth
of all gold or silver ore to be paid to the Crown. 74 The curiosity here is not simply that
(^68) Empire of Capital (n 35 ) 103. (^69) See R Brenner Merchants and Revolution (Princeton University Press Princeton 1993 ). (^70) See eg ‘Charter of Privileges to Patroons, 7 / 17 June 1629 ’ in W MacDonald (ed) Select Charters and
other Documents Illustrative of American History, 1606 – 1775 (Macmillan New York) 43 – 9. (^71) The Rights of War and Peace (n 2 ) 120 – 6. (^72) The Rights of War and Peace (n 2 ) 110. (^73) ‘First Charter of Virginia, 10 / 20 April 1606 ’ in select charters (n 70 ) 1 – 11 at 3. (^74) Select Charters (n 70 ) 1 , 2 and 3. See also, ‘Patent of the Council for New England, 3 / 13 November
1620 ’ in select charters (n 70 ) 23 – 33 at 28 and ‘First Charter of Carolina, 24 March/ 3 April 1622 / 3 ’in select charters (n 70 ) 120 – 5.
colonialism and domination
possession of such ground, for the reason that uncultivated land ought not to be considered
as occupied except in respect to sovereignty [ imperium ], which remains unimpaired in
favour of the original people. 83
In one respect Grotius was merely drawing upon a tradition of thought that had been
well established since the time of More who, in his Utopia , had already advocated the
settlement of foreign shores where land was unused. 84 But in a deeper sense he was
also giving expression to the overt rationality underpinning the contemporaneous
Dutch settlement of Guiana and Manhattan. 85 In its Charter of Privileges to Patroons
of 1629 , for example, the Dutch West India Company had declared that private indi-
viduals were ‘at liberty to take up and take possession of as much land as they shall be
able properly to improve’. 86 Even if the same Charter went on to specify that they ‘shall
be obliged to satisfy the Indians for the land they shall settle upon’, 87 this only went so
far as to emphasize that what was being authorized, was the settlement of land beyond
the immediate confines of Dutch jurisdiction.
Two aspects of this are noteworthy. In the first place it was to reflect back upon
practice of ‘symbolic’ possession associated with the right of discovery. If unsettled
land was open to be occupied, then that would go just as easily for territory which had
simply been marked by earlier discoverers as it would for territory newly found.^88
Title by discovery alone was effectively ruled out. Secondly, the underlying rationality
of a right to appropriate ‘deserted’ or ‘unproductive’ land was one that not merely
accorded with the precepts of mercantilism (to whit the maximization of domestic
production), but also had buried within it a further implication: the right to appro-
priate land that was not being used productively enough. This was to find explicit
recognition in the subsequent work of Locke who was to remark, with America in
mind, that even if land had come to be enclosed, it might nevertheless still be taken
into possession by another if it were ‘left to waste’.^89 That this rationality led, on occa-
sion, to squatting (Plymouth) or the unauthorized purchase of land (Rhode Island
and Providence)^90 is perhaps unsurprising. In the second place, however, in working
through the distinction between the public and private aspects of occupation (what
he referred to as occupatio duplex ), and in suggesting that the taking of possession
( dominium ) might leave unimpaired the jurisdiction ( imperium ) of the original
people, Grotius seemed to leave in the air the question as to how Dutch or British
(^83) De Jure Belli ac Pacis (n 59 ) vol II, ch ii, s xvii. 202. (^84) T More Utopia ( 1516 ) (P Turner trans) (Penguin London 1972 ) at 81. (^85) The Rights of War and Peace (n 2 ) 104 – 8. (^86) Charter of Privileges (n 70 ) 49 , s xxi. (^87) ibid 49 – 50 , s xxvi. (^88) See The Epochs of International Law (n 1 ) 395 – 401. (^89) J Locke Second Treatise of Government ( 1690 ) (CB Macpherson ed) (Hackett Indianapolis 1980 ) at
24 ; see further Empire of Capital (n 35 ) 109 – 15 and 157 – 61. (^90) See E Keene Beyond the Anarchical Society: Grotius Colonialism and Order in World Politics (CUP
Cambridge 2002 ) at 66.
interaction or imposition
sovereignty might come to be established over their respective settlements in the
Americas? The answer, it seems, was to be found in Grotius’ differentiation between
forms of jurisdiction ( imperium ). Jurisdiction was primarily that exercisable in rela-
tion to persons, and only secondarily did it take the form of jurisdiction over terri-
tory. 91 This ordering of jurisdiction seemed, in some ways, to be descriptive of how he
saw the settlement of the Americas: the personal jurisdiction over the Dutch and
British settlers transmuting itself subtly into territorial jurisdiction as the settlements
came to be established—whether by individual acts of ‘occupation’ or by the collec-
tive purchase of land from the original owners. Either way, however, sovereignty
appeared to proceed from the fact of private appropriation rather than the other way
round.
Emer de Vattel, who was later to return to the same theme almost a century later,
was to fill out the sketch provided by Grotius albeit in slight amended guise:
We have already observed (§ 81 ) in establishing the obligation to cultivate the Earth, that
these Nations cannot exclusively appropriate to themselves more land than they have occa-
sion for, or more than they are able to settle and cultivate. Their removing their habitations
through these immense regions cannot be taken for a true and legal possession; and the
people of Europe, too closely pent up, finding land of which these nations are in no particu-
lar want, and of which they made no actual and constant use may lawfully possess it, and
establish colonies there. We have already said, that he Earth belongs to the human race in
general, and was designed to furnish them with subsistence: if each nation had resolved from
the beginning to appropriate to itself a vast country, that the people might live only by hunt-
ing, fishing, and wild fruits, our Globe would not be sufficient to maintain a tenth part of its
present inhabitants. People have not then deviated from the views of Nature in confining the
Indians within narrow limits.^92
Whilst Vattel retains the same core theme, several notable shifts in the terms of
debate are apparent here. In the first place, and most obviously, the discussion is now
framed in terms of the rights and obligations of nations: it is no longer a matter of
private appropriation, but appropriation of a public nature equivalent to, but differ-
ent from, conquest. When laying claim to vacant territory, the nation acquires
‘empire’ or ‘sovereignty’ at the same time as ‘dominion’—‘it can have no intention’
he explains elsewhere, ‘in settling in a country, to leave to others the rights of com-
mand’. 93 But at the same time as pushing the emphasis towards the rights of sover-
eignty, he opens up at the same time, a gap between public and private modes of
territorial acquisition, in which the question of agency was therefore to become
significant: under what authority were the colonists settling the land in question?
Did they possess national character or were they merely emigrants? Was the
(^91) De Jure Belli ac Pacis (n 59 ) vol II, ch iii, s ix, 206 – 7. For this interpretation see The Rights of War and
Peace (n 2 ) 107 – 8. (^92) E de Vattel The Law of Nations or Principles of Nature Applied to the Conduct and Affairs of Sovereigns
(Samuel Campbell New York 1796 ) book I, ch xviii, s 209 , at 160 – 1. (^93) ibid book I, ch xviii, s 205.
interaction or imposition
put in place in the aftermath of the Cobden-Chevallier agreement of 1860 , or by the
emergence of the trusts, cartels, and monopolies associated with the rise of ‘high
finance’^97 were points of difference. Nevertheless, there was no doubt that the appar-
ent over-accumulation of capital in Europe had encouraged the speculative interest
in overseas investment (in trade, mining, manufacturing, railways, telegraph systems
etc) which had, in turn, fed through into a self-reinforcing logic of acquisition: colo-
nies and protectorates had to be acquired in order to ‘protect’ overseas trade and
investment from the dangers posed by the monopolistic or protectionist policies of
rival colonial powers.
At the centre of this account of the late 19 th-century ‘turn’ towards colonial acqui-
sition was the Berlin Conference of 1884 – 85 which, in many respects, appeared to
stand as a symbol of this new Imperial era. 98 Articles 34 and 35 of the Final Act were
particularly resonant here insofar as they sought to lay down the terms under which
colonial powers might ‘take possession’ of land in Africa:
Article XXXIV Any Powers which henceforth takes possession of a trace of land on the coasts
of the African continent outside of its present possessions, 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.
Article XXXV 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
transit under the conditions agreed upon. 99
The limitations of those articles were made all too apparent when the members of the
Institut de Droit International were later to discuss their implications: not only were
they territorially limited (specifically to the coasts of Africa), but they did not resolve
either the question as to the necessity of native consent (as the US representative at
the Conference, Kasson, had insisted they should) or whether the obligation to ensure
the ‘establishment of authority’ subsisted in equal measure for protectorates as it did
for possessions over which sovereignty was definitively asserted. In some eyes, the
provisions appeared to endorse the idea that African territory was effectively to be
regarded as territorium nullius for purposes of colonization; in the view of others
such a conclusion was implicitly denied.^100 In fact, when read as a whole, the final Act
(^97) JA Hobson Imperialism: A Study (J Pott New York 1902 ); R Hilferding Finance Capital: A Study in
the Latest Phase of Capitalist Development (M Watnick and S Gordon trans) (Routledge London 1981 ). (^98) See generally Between Equal Rights (n 1 ) 250 – 6 ; The Gentle Civiliser of Nations (n 1 ) 121 – 7. (^99) General Act of the Berlin Conference Respecting the Congo (signed 26 February 1885 ) ( 1885 ) 165
CTS 485. (^100) J Fisch‘Africa as terra nullius: The Berlin Conference and International Law’, in S Förster, W Mom-
msen and R Robinson (eds) Bismarck, Europe and Africa: The Berlin Africa Conference 1884 – 85 and the Onset of Partition (OUP Oxford 1988 ) 347 – 74 at 355 ; A Fitzmaurice ‘The Genealogy of Terra Nullius’ ( 2007 ) 129 Australian Historical Studies 1 – 15.
colonialism and domination
assumes a thoroughly ambivalent character: whilst in part it was concerned with
allowing colonization to proceed without conflict, there was also a distinctively anti-
colonial thread within it.^101 This was true, in particular, in relation to the plans for the
‘conventional regime of the Congo’ (which spread across the entirety of the African
Continent from East to West) which sought the establishment of a ‘neutral’ central
African zone of free commerce over which Leopold’s Congo Free State would exercise
a superintendent responsibility. That such a zone never materialized and, in fact, dis-
solved into one of the most brutal of colonial regimes is, perhaps, only emblematic of
the general contradictions that underpinned the agreement in the first place.^102
Two aspects of the story of the Berlin Conference might be usefully highlighted
here. The first is the apparent confusion that the Conference sought to resolve con-
cerning the precise modes by which colonies and protectorates might be acquired,
and which, at the same time, brought into contemplation the nature and significance
of ‘native sovereignty’. The second is the curious connection that seemed to exist
between the two modes of colonial engagement in question—formal colonization
on the one hand, and the pursuit of free trade on the other.
Before turning to these two dimensions of the international legal framework of
19 th-century colonialism, two particular aspects of its environment are worth high-
lighting. In the first place was the decline of mercantilism as an animating philoso-
phy, and the rise in its place, of a new rationality of government organized around the
idea of the self-regulating market and the institution of free trade. In the hands of
Smith, Ricardo, and Say, the spirit of laissez-faire government was to find a new regu-
lating force in the natural laws of economic life which would become its ‘indispensa-
ble hypodermis’. 103 This presaged the gradual decline of formalized colonial
monopolies, the winding up of the old charter companies (the East India Company
being replaced by direct rule in 1858 ) and the rise of an increasingly fervent mercan-
tile free-trade lobby. 104 Paradoxically enough, however, colonization proceeded
apace, gaining velocity in the ‘neo-mercantilist’ decades at the end of the century.
Secondly, the industrial revolution as it was to take shape in Europe had both led
to the ‘political emancipation of the bourgeoisie’ as Hannah Arendt put it, 105 and to
the emergence of nationalism as a political ideology and practical project. Whether
prompted as a palliative to the collective anomie of an increasingly urban industrial-
ized workforce, or as a project associated with the creation of a skilled and mobile
(^101) R Robinson ‘The Conference in Berlin and the Future in Africa 1884 – 1885 ’ in Bismarck, Europe
and Africa (n 100 ) 1 – 34. (^102) SE Crowe The Berlin West African Conference 1884 – 85 (Longmans, Green and Co London 1942 ) at
4 – 5. (^103) M Foucault The Birth of Biopolitics: Lectures at the Collège de France 1978 – 79 (M Senellart ed,
G Burchell trans) (Palgrave Macmillan New York 2008 ) at 16. (^104) See B Porter Critics of Empire: British Radicals and the Imperial Challenge (Macmillan London
1968 ). (^105) H Arendt ‘The Origins of Totalitarianism’ (Harcourt New York 1951 ).
