Jörn Axel Kämmerer
- 1648-1815 — 1815 to World War I — World War I to World War II — Colonization / Decolonization — Act of state — Sovereignty
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
1 Whereas colonization, a form of conquest usually involving alien dominance and subjugation, has been known to all historic eras, colonialism, at least in its narrower and frequently implied meaning, reaches beyond the mere taking of foreign land and peoples. Generally speaking, it refers to a concerted practice of, in most cases, European States dividing up other inhabited parts of the world amongst themselves. While Spain and Portugal, in the 15th century, took the lead by starting to partition much of the Americas and parts of East Asia, and other powers such as Britain, France, and the Netherlands subsequently followed the pattern, it was in the 19th century when European colonization proliferated and started to acquire features of an ideology, of which the ending ‘-ism’ is characteristic. Imperialism, which colonialism coincides with and is akin to, is marked by a belief in the anthropological, cultural, and political superiority of the European powers and their people, which is sometimes masked as an educative mission. It usually led to exploitation of natural and/or human resources and in some cases it also involved the founding of European settlements.
2 Local political entities in Africa and elsewhere were regarded as inferior, incapable of sovereign civilized self-government, and thus unworthy of being admitted to the international law-making community. Hence, the European powers reserved for themselves the right to assume the governance of territories whose inhabitants were not deemed capable of sovereign rule. As a result, Africa and large parts of Asia were turned into patchworks of non- (or at best semi-)self-governing tracts of land whose common geographic feature was the lack of contiguity with the colonizing State and mainland Europe—and for which ‘colonies’ was used as a generic rather than a legal term.
3 What colonialism meant for the evolution—and eventually the universalization—of public international law is highly disputed: While some scholars perceive it as a retrograde step away from an already universal legal community, others contend that the absence of agreed principles and rules precludes the idea of a common legal basis and that the non-Europeans, lacking awareness of the existence and content of the order that Europe rested upon—the ius publicum Europae(or)um (see below)—should not have been subject to the imposition of principles such as State sovereignty originating from this order. From this perspective, colonialism marks the encounter of European public international law with alien, regional ‘international’ orders. The penetration of Africa by European legal rule and the gradual supersession of regional orders involved discrimination and outlawing, but eventually the geographic universalization of international law (see also universality) was also to become the starting point of a truly universal order when, after World War II, the former colonies gained independence (Kämmerer  402; on the relevance of colonialism in the evolution of universal international law, see Starski and Kämmerer).
4 Even in the 19th and 20th centuries, colonial conquest and the subjugation of alien peoples (see also aliens) was by no means an exclusively European practice. For example, Japan, a country whose independence the European powers respected but which did not fully pertain to their legal community, let alone the European ‘Concert’ (ie, the leading nations), started its conquest of the adjacent territories of Taiwan, Korea, and others in 1895. Unlike Japan, the Ottoman Empire was formally admitted to the European concert of powers through the 1857 Treaty of Paris, but whether its possessions on the Arabian Peninsula qualified as colonies or rather as territorial extensions is less clear. The same difficulty arises with respect to the territorial expansion of other countries into adjacent land, often by belligerent occupation (Occupation, Belligerent), especially where the legal status of the conquered or acquired areas was not inferior to, or the same as, the homeland, with territorial contiguity shifting towards continuity. This applies to the extension of Russia into Siberia and also to the expansion of Abyssinia’s (Ethiopia’s) territory parallel to, and possibly also as a buffer against, European encroachment on Africa and plans to colonize Ethiopia. These practices did not, however, constitute colonialism in the ‘classic’ sense and are therefore not further considered in the present analysis.
5 Neo-colonialism is a notion frequently referred to nowadays. It encompasses any form of alien economic, political, or cultural domination in present international relations that resembles classic colonialism (see, eg, Demeske 157). It is used as a reproach by countries or groups of countries, not necessarily former colonies, against other countries, not necessarily the former colonizer(s), for patronizing and disrespectful treatment ‘in the spirit of’ colonialism, but may also be applied to the exploitation of resources akin to historic colonial practice (but unlike the latter requiring the consent of the State, such as ‘land grabbing’). The idea is endowed with more sociological and political than legal implications and will therefore not be analysed in this entry (see also Sociological Theories of International Law).
B. History of Colonization
6 The founding of so-called colonies was practised from antiquity, when the Phoenicians, the Greeks, and the Romans—from whose language the root word colonia derives—either settled in or conquered distant territory, which often was overseas. European colonization of other continents started with the Age of Discovery in the 15th century, but in most cases was limited to the establishment of coastal colonies or trading posts. Colonization of Central and South America went far beyond this, but even there, large Southern inland areas were not under effective control of Spain and Portugal before the first half of the 19th century, when these colonial empires already began to collapse. Even Portuguese sovereignty in Africa did not extend far inland, where Angola and Mozambique had been established as colonies as early as the late 15th century, mainly for the purpose of trading slaves (Slavery). Only a few decades later, France laid the cornerstone for its first colonial empire by founding colonies in North America, specifically in Acadia and Quebec. In 1699, Louisiana was established, while during the early 17th century France acquired several islands in the West Indies and, later on, parts of India. Having lost many of these territories to Britain, the French rebuilt their colonial empire in the 19th century, this time focusing on Africa and Indochina. The British, who had established trading posts in North America as early as the 16th century, started colonization in North America in 1609 with an early trading post in Virginia, and also occupied parts of the West Indies at approximately the same time. Territories in South and South-East Asia were under the control of the East India Company, not the British government, from the late 18th century (Young 62). In 1858, the British Crown finally took over control of India from the East India Company. The Netherlands, too, had originally placed colonization in the hands of two companies, the Dutch East India Company and the Dutch West India Company, founded in 1602 and 1621 respectively, and had vested them with a commercial monopoly (Young 61). In 1609, New Netherland was established on the banks of the Hudson River, including the settlement of New Amsterdam, which under British rule became New York in 1664, and by the end of the 17th century dependencies in the West Indies and Guyana in South America were acquired. Indonesia was declared a Dutch colony in 1798, after the East India Company had been dissolved. The last continent to be subject to European colonization, but the one where colonialism was most intense, was Africa. After the seizure of what was to become the British Cape Colony in 1795, European powers started to divide not only the coastal areas but also almost all of Africa among themselves. As early as 1683, a chartered company, Kurfürstliche Afrikanisch-Brandenburgische Compagnie, from the margravial electorate of Kur-Brandenburg, had founded the small colony of Großfriederichsburg, now Pokesu, in what today is Ghana (see Fischer; Wegener); but Germany and Italy did not actively engage in colonization until the mid-1880s, when they acquired their first African possessions, namely German South-West Africa in 1884 and Eritrea in 1885. Also in 1885, the sovereign Congo Free State was established under the Belgian king’s guidance as his de facto private property in the Congo Basin (see also Congo, Democratic Republic of the). The last Western State to establish a network of colonial possessions was the United States of America (‘US’). Although a first step towards colonization had already been made in 1822, when Liberia was acquired thanks to the support of the American Colonial Society, a systematic colonial policy was not pursued until 1898, when, inter alia, Cuba and the Philippines were taken away from Spain.
7 The establishment of the League of Nations in 1919 does not mark the end of colonialism but a growing awareness in the international community of colonial issues and indigenous peoples. Dominated by European colonial powers, the League of Nations neither required its members to initiate decolonization nor did it even provide for it as regards the colonial territories which had been lost by Germany and the Ottoman Empire as a consequence of World War I (see also History of International Law, World War I to World War II; Peace Treaties after World War I). Art. 22 Covenant of the League of Nations (‘League Covenant’), declaring ‘the well-being and development’ of colonial peoples a ‘sacred trust of civilization’, pursues what may be qualified as an ‘educational approach’ (see Anghie  118). This is where guidance by Western powers, rather than independence, was considered as the best way to achieve sound humanitarian, economic, and social development. In this regard the International Court of Justice (ICJ) in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) expressed the following:
It is self-evident that the ‘trust’ had to be exercised for the benefit of the peoples concerned, who were admitted to have interests of their own and to possess a potentiality for independent existence on the attainment of a certain stage of development: the mandates system was designed to provide peoples ‘not yet’ able to manage their own affairs with the help and guidance necessary to enable them to arrive at the stage where they would be ‘able to stand by themselves’ (at para. 46).
This approach was later partially reiterated by Art. 76 Charter of the United Nations (United Nations Charter; see also United Nations [UN]), but largely overruled by its decolonization policy. While the status of dependent territories of the victorious powers of World War I remained unchanged, former German and Ottoman colonies were converted into mandates, whose governance under the auspices of the League of Nations was attributed to States other than their former sovereigns. Although the League Covenant did not allow for these territories to be annexed to those of the victorious powers (Annexation), thus putting up a barrier to the enlargement of their colonial possessions, the progressive decline of the League of Nations enabled Mandatory States largely to adjust the status of their mandate territories to that of their colonies. The only mandates whose independence was at least, albeit cautiously, considered by the League of Nations were the so-called ‘A’ mandates, territories formerly under Ottoman rule, which had reached a sufficiently advanced stage of development to stand alone and be guided to independence by a Mandatory. In contrast, independence was practically ruled out for some former German colonies, including South-West Africa, which were ‘C’ mandates. The League Covenant considered the ‘interests of the indigenous population’ to be served best if these tiny or sparsely populated possessions remained under the permanent authority of a Mandatory (Art. 22 League Covenant). As a consequence of the League of Nations’ restrictive approach, only a few colonies managed to gain independence before 1945, namely Egypt in 1922 and Iraq in 1932.
C. Purposes and Modes of Colonization
8 The common understanding of ‘colony’ (on the legal definition see below) is that of a tract of land which, along with its inhabitants, is subject to the territorial sovereignty of an alien, usually overseas, power but which is not entirely integrated within its legal order or its territorial or political structure. Most territories known as colonies were inhabited by populations who, for reasons such as skin colour or other racial features, were qualified as ‘native’ or indigenous. The colonizing powers awarded them fewer rights than those conferred upon their own representatives or upon white settlers, even those who were nationals of other States. In other words, not only did the autochthonous populations lack self-determination, but in most cases they were also discriminated against by the colonizing State. While the British adopted a subtler practice, known as ‘indirect rule’, which granted the colonial people a comparatively high degree of autonomy in regulating at least local and minor affairs, other colonizers, among them France, applied a more ‘direct rule’ (Ayittey 427–28). Settler colonies were distinct from most other colonies insofar as inequality marked the social structures within the colony itself, that is, between the European settlers and the colonized people, more than those between the colonizer and the colony.
9 Historically, colonies have been established for a broad range of purposes, which frequently coincided. Colonialism in the Middle Ages primarily served economic goals. Trade in gold, slaves, and spices as well as exploitation of natural resources led to the establishment of ‘classic’ trading colonies arising from trading posts like Macau or Singapore. The pursuit of economic goals explains why private entities were involved in the colonizing process. In certain cases, rulers transferred rights to trading companies, eg, the Sultan of Zanzibar delegated some territorial rights concerning the Benadir coast to the Royal Italian East Africa Company in 1892, which administered this territory in his name (see Alexandrowicz 174; generally on colonization by corporations, Lindley 91). Secondly, and in the same context, plantation colonies must be mentioned, where slaves or forced labourers worked under the supervision of Europeans in Africa and the West Indies, as well as Indonesia (Forced Labour/Slave Labour). They can be distinguished from mere ‘bridgeheads’, such as Cape Town, which had originally been established in order to supply sailors with fresh food. Unlike trading colonies, settler colonies, among these the early British settlements in North America, were not always established on a government’s initiative but in many cases by private emigrants or refugees (Immigration). Overpopulation in some parts of Europe and religious and political oppression but also, on a later stage, a demand for natural resources (often furs) fostered this process (see Pagden 104; Anghie  144, 160, 172–73). In some cases, settler colonies evolved from penal colonies, established by European governments for banishing convicts, eg, between 1788 and 1836 in today’s Australian New South Wales.
10 In a great number of cases, starting with the Spanish and Portuguese conquista of the Americas, territorial conquest and acquisition of geo-strategical advantages were primary goals of colonization. Enhanced military and political competition between European States was a driving force behind colonialism in the 19th and early 20th centuries. Colonies were regarded as a symbol of national greatness and superiority, which made their acquisition a purpose in itself. The declared motives were often blended with philosophical, religious, and anthropological convictions (see Korman 42; Hofmeyr 1041). They were frequently used as a pretext to legitimize the European struggle for power (on the European ideologies of empire, see Pagden), although public international law did not even require a formal justification for the acquisition of colonies. A frequently alleged motive was the Christian mandate to evangelize (Young 156), which in the 19th century gradually shifted to a civilizing mission of the ‘white, superior man’, enabling the ‘wild’ populations to profit from the achievements of European culture (Anghie  64; Mutua  1127).
D. Colonialism and Public International Law
11 Colonialism is a matter of concern to public international law, since the latter served as an instrument not only for establishing colonial regimes but also for justifying the mode of their acquisition and colonial policy. With repartition as its prevalent feature, and considering the sparsity of underlying, common legal principles, colonial legal practice did not condense into what may be referred to as ‘international colonial law’. Yet, colonization gradually shifted the focus of international law away from Europe. In other terms, colonial international law was universal in scope, preparing the ground for modern international law, but was conservative as regards participation, which remained reserved to a closed shop of Western States (see Schmitt 111). By virtue of claiming to be endowed with exclusive international law-making power, European and other ‘civilized’ States conferred upon each other the right to colonize land that had not yet been under the territorial sovereignty of any one of them, that is to say, to incorporate land into their own respective territory.
1. Acquisition of Colonies
12 In order to take possession of foreign land, European powers, by means of international treaties, first defined zones of interest, which were open for colonization exclusively to the signatories or the States listed in the treaty (von Stengel 101).There was discordance among scholars as to whether and where a unilateral act (Unilateral Acts of States in International Law) was sufficient for colonization (ie acquisition of territorial sovereignty), in which case it would have been subject to occupation, or whether at least some form of assent by the inhabitants was required (on the different schools of thought, see Lindley 10). Some scholars indeed qualified the land inhabited by ‘uncivilized’ people as terra nullius, which implied that it was open to unilateral occupation by European States just as if it were newly discovered and uninhabited land (see Fisch 20). The prerequisites of colonial acquisition have never been fixed and it may be mentioned in this regard that Art. XXXIV General Act of the Conference respecting the Congo of 1885 (‘Congo Act’) only relates to the legal possibility of ‘taking possession’, avoiding the term ‘occupation’, but does not elaborate on its modalities.
13 In most cases, colonial practice was flexible rather than consistent. ‘Colonial agreements’ were quite frequently concluded between European powers and indigenous rulers (Alexandrowicz 172). Some experts distinguished ‘wild’ from ‘half-civilized’ peoples, the latter being potential partners to an agreement. The fact that agreements were usually preferred over unilateral action does not necessarily stem from legal convictions but also from a desire to avoid unnecessary military conflicts. (A rare case of belligerent conquest was the acquisition of Matabeleland and Mashonaland by the British (Alexandrowicz 177).) Although the British Crown usually set great store by the conclusion of agreements, it also sometimes prided itself on ‘discovery’ even where the land was (sparsely) populated (such as the South Island of Aotearoa/New Zealand; Miller 868). Even where agreements had been fixed, scholars and courts often found, from the onset but more frequently at a later moment when the colonizers were being blamed for breaching such an agreement, that it was only a façade or, as a New Zealand judge once put it, ‘a simple nullity’ (Justice Prendergast in Wi Parata v Bishop Wellington) on grounds that ‘wild’ peoples possessed no legal capacity whatsoever. Even devoid of binding force, acquisition agreements were considered to be useful for ‘atmospheric’ and strategic reasons (Adam 259; see also Koskenniemi 136). The points of view varied over time and depending on the circumstances but also on the colonial power that was involved (Anghie  78–79; Göcke 103–06).
14 Since the prevailing position was that these agreements could not be considered as international treaties, they were either regarded as civil or State contracts or even as ‘sham deals’, depending on whether or not scholars recognized the legal capacity of indigenous partners. Even recognition of their binding force did not really bind the colonial powers: Being mere contracts and not treaties they could be embodied in the legal order of the colonial power and hence be altered by domestic legislation. However, even at the time of imperial colonialism, a minority of scholars awarded indigenous communities the status of States, or at least of subjects sui generis under international law (see Bendix 11; Salomon 201), which implies that not only was a consensual basis required for any acquisition of territory (except for belligerent occupation) but that any such agreement—hence a treaty—had to be regarded as a cession of territory and correspondingly as a transfer of territorial sovereignty. Even where formal agreements on the transfer of sovereignty were concluded and the ‘indigenous’ partners were literate enough to understand them, it is questionable whether these agreements were valid, considering that the autonomy of the local partner did not stem from the ‘Westphalian’ order but was a precolonial, extra-European achievement and that the partners must in most cases have been unaware of the actual meaning and implications of cession of sovereignty (Anghie  79–80). Such was the case with the Treaty of Waitangi (1840), whose Maori version invariably failed in attempting to convey the legal principles underlying the English text. At the same time, this case underpins the fact that colonizing powers were ready to even accept the idea of indigenous sovereignty where this could help to reinforce their acquired title.
15 In several cases, indigenous rulers accepted as contractual partners by Europeans assented to a European State becoming the protector of their territories and to this end renounced their supremacy and control over them. Examples include the acquisition of Zanzibar, Morocco, etc and the treaties between France and tribes of West Africa. While many of these protectorates (Protectorates and Protected States; on the varying meanings of this term see Koskenniemi 151) remained intact until decolonization, others were gradually converted into fully-fledged colonies, which lacked any legal personality under international law. Deprivation of the powers which had been left to indigenous leaders or monarchs was often a consequence of actual or alleged breaches of existing contractual obligations, regardless of whether or not a protectorate had been established. For example, following the 1904 Herero revolt, which had been put down by German troops, Germany considered itself free from any obligation arising from the protection treaty concluded in 1885 and consequently denied Herero tribe members basic social as well as individual rights (Hereros).
2. Legal Status of Colonies
16 The scope of the term ‘colony’ is fairly unclear and no universally accepted definition can be attached to it in public international law (see Kämmerer  402). This corresponds with the difficulty in defining colonialism as such. Only a small number of treaties concluded between European States employ ‘colony’ as a legal term. One example is the Agreement between Germany and Great Britain respecting Zanzibar, Heligoland and the Spheres of Influence of the two Countries in Africa, also known as the Heligoland-Zanzibar Treaty, concluded in 1890. However, the notion is not referred to in any of the conventions on the use of specific dependent territories and the treatment of indigenous populations; neither in the Congo Act of 1885 (revised in 1919), insofar as it establishes general rules on taking ‘possession of a tract of land on the coasts of the African continent’ (Art. XXXIV Congo Act), nor in the General Act of the Brussels Conference Relative to the African Slave Trade of 1890. The term ‘colony’ is employed but not defined in Art. 22 (1) League Covenant, applying to ‘colonies and territories, which as a consequence of the late war have ceased to be under the sovereignty of the States, which formerly governed them and, which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’. More recent documents, especially the UN Charter, have replaced ‘colony’ with the more modern notion of non-self-governing territories (see Crawford 602). Unlike the formerly applied notion of ‘colony’, the new term is programmatic insofar as it alludes to the political and legal wish of the territories seeking self-determination. A general legal definition, however, is yet to be found.
17 The reluctance of public international law to attach legal relevance to the notion ‘colony’ is, among other factors, rooted in the scarcity of common denominators. While dependence on a—in most cases—European power was a common feature of the territories in question, the richness of existing variants of foreign domination hampered the definition of a single category as regards the legal status. In conformity with the broad range of ‘colonial’ territories acquired, the spectrum of their legal status, as defined by the colonial powers, is equally broad. Each ‘conqueror’ elaborated its specific colonial law. Moreover, the term ‘colony’ was given divergent meanings in respective national legislation. While Great Britain, where the notion is still in legal use, applied it to a multitude of dependent territories, but not to those considered as protectorates and especially not to India (see Berber 15), French law has even allowed dependent indigenous States to co-exist on the same territory as colonies. The notion has given way to the expression territoires d’outre-mer (overseas territories), which, by adopting the Constitution of the French Republic in 1958, then entered into a ‘community’ with the French Republic (Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America). In contrast to the territoires (renamed collectivités d’outre-mer in 2003), former colonies having been declared départements d’outre-mer (overseas departments) became, and have remained, integral parts of the French State. In Germany, which in 1919 was deprived of its colonies by Art. 119 Treaty of Peace between the Allied and Associated Powers and Germany (Versailles Peace Treaty ), the official expression was Schutzgebiet (literally ‘protection area’), although the competent authority, established in 1907, bore the name Reichskolonialamt (National Colonial Office) (Grohmann 93). The expression Schutzgebiet was ostensibly adopted from the English ‘protectorate’ but not without a deliberate shift of meaning (Schwörbel 18; Schack 209). It was held that these Schutzgebiete constituted a part of the international personality of the German Empire although not formally belonging to its territory (Hammen 197). Countries which managed to retain parts of their colonial empires after World War II showed a tendency to avoid the term ‘colony’ (History of International Law, since World War II). Thus in 1961, Portugal, in an obvious attempt to escape calls for decolonization, renamed its colonies províncias ultramarinas (overseas provinces), and the scattered remains of Spanish colonization on the African continent were referred to as Africa española (Spanish Africa). In an extraordinary case, a dependent territory was even, with the assent of other European powers and the US, disguised as a sovereign State. The Congo Free State, established by the Belgian king in 1885, was officially turned into a colony only as late as 1908, when the king sold it to the Belgian State.
3. Rules Applying to Colonies
18 Before approximately 1850, public international law originating from European powers, also known as ius publicum Europae(or)um, was considered to be the legal order that regulated the mutual affairs of the respective States (on the ambiguities and ramifications of the term see von Bogdandy and Hinghofer-Szalkay). The legal capacity of non-European peoples and even the existence of parallel international orders governing the political relations of non-European peoples had not yet been ruled out by that time. Relations between European and non-European powers in Asia, but also parts of Africa, could not be established on a common legal ground as their respective concepts of international law did not intersect. In principle, public international law was considered to be binding only upon those entities that took part in its making. Most relations with non-European powers, especially in South and South-East Asia, were based on a highly pragmatic approach. In a number of cases, Europeans had even, albeit only formally and superficially, submitted themselves to tributary systems which were common in East Asian international law (International Law, Regional Developments: East Asia). This changed at the moment when European public international law claimed to be globally applicable, without allowing for the participation of non-Western powers in international law-making. As a consequence, many entities in Africa, Asia, and Oceania, which had previously negotiated with European powers on an equal footing, were no longer accepted as States but instead, together with the peoples they represented, as objects of international law. At this time, the European ‘club’ considered only Central and South America, the Ottoman Empire, Liberia, and, in the late 19th century, Japan, to be on equal footing with it (see Anghie  67, 84–87).
19 The colonial powers used public international law as a tool for delimiting interest zones and fixing borders (Kämmerer  46–47, 50–51). In contrast, legal provisions on the statute and governance of colonies and on the rights of their inhabitants were sparse. In general, the ‘uncivilized’ were denied any form of legal personality, which would allow them to participate within the colonizing State (Fitzpatrick 20). However, some authors suggested that public international law entitled all individuals to certain rights, eg, freedom of contract, regardless of the question of whether they could be considered as citizens or even as ‘civilized’ beings, but on the whole, this remained an exceptional view.
20 The policy of legal pluralism was a central element of the government and administration of colonies (Benton 2). As a rule, colonial powers established a dual legal system within the colonies (Alexandrowicz 183; Hooker 465). In German colonies, European inhabitants were subject to German civil and penal law, while the native population was referred to either indigenous custom or specific rules adopted by the colonial government. Rules of the natives were only modified if they were considered to be ‘uncivilized’ (Fischer 78 and 278). One particularly interesting example is the former German colony of Cameroon, where indigenous arbitral tribunals were established. Native chiefs presided over these regional tribunals, and ruled based on native rules and customs in civil and certain penal cases (Eckart 173). Another example of this legal division between Europeans and the indigenous population is Indochina, where, by decree, the French Civil Code applied to the French citizens, while Annamite law for civil and commercial claims applied among natives and Asians (Saada 111).
21 A similar situation can be found in the British colonies in Africa. The British preferred to install an ‘indirect rule’, which involved elements of indigenous auto-governance (Ayittey 427). Indigenous law was accepted as valid (customary) law to the extent that it did not contradict British law (see Merry 897). However, scholars have proven that what European powers defined as indigenous customary law deviated from the reality of indigenous self-regulation, since what constituted customary law was defined by the colonial powers (see Hooker Chapter II); yet, it would be an exaggeration to conclude that the colonial powers imposed customary law. The dual concept reflected the continuous struggle between the colonizing State and the colonized people. It was not uniformly applied throughout the colonial territories. For example, some native Senegalese were granted a status similar to French citizens, allowing them, inter alia, to bring actions before French courts (Benton Law and Colonial Cultures 156).
22 Colonial powers often lacked the willingness to grant legal certainty to the local population. In numerous cases, revolts of the indigenous inhabitants provoked harsh reactions from the colonizing powers, amounting to systematic oppression of peoples and dispossession of land and property (Kämmerer and Föh 315). Even without these occurrences, oppressive methods such as forced labour were common (Vlekke 104 and 151). The admissibility, in what was then public international law, of treating a colonial population in a way that in Europe would have been illegal is highlighted, inter alia, by a statement of the Council of the League of Nations, which considered forced labour as licit under international law as long as it was aimed at improving the infrastructure of a colony. Moreover, the ILO Convention concerning Forced or Compulsory Labour did not entirely ban this practice, leaving room for reservations of State Parties as regards its territorial application (Treaties, Territorial Application). In some cases, oppression, dispossession, and disenfranchisement only started in the mid-20th century when independence movements challenged the remaining colonial powers; such was the case, inter alia, in Algeria (see Connelly), Indonesia (see Taylor), and Kenya (see Yamamoto and Serrano 89–90).
23 Most of the few treaties which specifically aimed at the governance of colonies, particularly in Africa, tended to eradicate the slave trade. This basic concern was enshrined in Arts VI and IX Congo Act of 1885 and, in particular, the General Act of the Brussels Conference Relative to the African Slave Trade of 1890 (see Fisch 106). Furthermore, Art. VI (1) Congo Act obliges the Contracting Parties to ‘watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being’, which, however, is not to be understood as the awarding of corresponding individual rights to the indigenous peoples. Rather, the native tribes have to be considered as mere ‘objects’ protected by the Congo Act (Schildknecht 275). Although the Congo Act was meant to apply to the Congo Basin only, it can be considered as reflecting the customary international law of its time. This is evidenced by the reference to it in Art. VIII General Act of the Brussels Conference Relative to the African Slave Trade, as well as in the 1919 Convention Revising the General Act of Berlin, February 26, 1885, and the General Act and Declaration of Brussels, July 2, 1890, both of which had a far broader scope of application. One of the rare provisions aiming at awarding ‘natives’ individual rights was Art. VI (3) Congo Act, according to which ‘[f]reedom of conscience and religious toleration are expressly guaranteed to the natives, no less than to subjects and to foreigners’ (see also Religion or Belief, Freedom of, International Protection). The surprisingly humanitarian rhetoric of the Berlin Conference of 1884–85 on the regulation of colonization in Africa and the Congo Act has to be seen as an attempt to justify and legitimize the policy of colonization (Anghie  57).
E. The Aftermath of Colonialism
24 As a phenomenon, colonialism may be said to have vanished with decolonization, but its effects have remained visible until today: in the system of public international law as such, which emerged from a genuinely European order, and in its actors and the ‘North–South divide’ between developed and developing nations. Decolonization entailed the independence of the former colonies or at least the right of colonial peoples to decide on their self-governance. It helped public international law become universal in both legal content and participation (see also International Public Order; Decolonization: Belgian Territories; Decolonization: British Territories; Decolonization: Dutch Territories; Decolonization: French Territories; Decolonization: Portuguese Territories; Decolonization: Spanish Territories) but at the same time it subjected the formerly colonized to a legal system that had been created and shaped by others. Post-war, universal public international law thus is postcolonial by nature.
25 Against this backdrop, in recent years, ‘Third-World approaches to international law’ (‘TWAIL’) have been propagated as a means to redefine international law from the perspective of countries that used to be colonies and to overcome the inherited European bias (see Mutua ). From the perspective of most (but not all) former colonies, colonialism needs to be condemned at large, not only for the oppression and cruelty associated with it but also for having hampered the economic and political development of the former colonies, even after independence (Anghie  193, 208; Mutua  35). In retrospect, a nuanced and sober picture is hard to draw.
26 In many cases, members of colonized peoples were deprived of their property, freedom, or lives, social structures were destroyed, natural resources were exploited, and treasures, including artwork, were abducted by the colonizers, with little or no compensation or restitution after independence. The question as to whether public international law provides a basis for compensating peoples formerly regarded as indigenous for damage suffered through oppressive acts of colonial powers was raised long after most dependent territories had gained independence. In 1989, the Republic of Nauru filed a proceeding against Australia, which had been nominated trustee of the formerly German island, claiming compensation for the exploitation of its phosphate resources, which Nauru considered to be a breach of Australia’s trusteeship obligations and, in particular, a violation of the right to self-determination (Case Concerning Certain Phosphate Lands in Nauru [Nauru v Australia] [Preliminary Objections] ); see generally Anghie ). The case was removed from the list of the ICJ (Case Concerning Certain Phosphate Lands in Nauru [Nauru v Australia] [Order of 13 September 1993] ICJ Rep 33), after the parties had reached a settlement on the issue (Certain Phosphate Lands in Nauru Case [Nauru v Australia]). On 19 September 2001, the Herero People’s Reparation Corporation, as well as the Hereros, an ethnic group living in Namibia, sued Germany and German enterprises before a US court for acts relating to the 1904 Battle of Waterberg (Reparations). According to the plaintiffs, the incidents amounted, inter alia, to genocide, because the defeated Hereros had been driven into the desert, where most of them allegedly starved, and survivors had been scattered and dispossessed (see Kämmerer and Föh 294; Anderson 1155–89). The responsible German troop commander had indeed issued a proclamation that threatened all male Hereros with being unconditionally shot. That legal action (see Harring 409) was withdrawn in 2003 (The Herero People’s Reparations Corporation v Deutsche Bank AG) but another one was filed in 2017 (Rukoro and others v Federal Republic of Germany) and is still pending before a New York court (as of January 2018). Uncertainty persists not only as regards its admissibility in the light of sovereign State immunity but also as to the lawfulness of the acts in question (cf Kämmerer  87). In 2009, a similar lawsuit was filed by victims of British counter-measures to the Kenyan Mau Mau revolt in the early 1950s (see Kenya Human Rights Commission; Mutua and others v Foreign and Commonwealth Office). The British government, in 2013, eventually reached a settlement with the plaintiffs on the payment of individual compensation to all victims (Yamamoto and Serrano 99–101).
27 With respect to the sovereign will of States, historical incidents must not be judged on the basis of currently applicable rules of public international law, but only on the law in force at the respective time (tempus regit actum, see Fabricius 38, 334). Yet, a strictly ‘intertemporal’ approach appears to be unsatisfactory insofar as States with populations who were victims of colonial oppression would be bound to accept rules which were made without their participation and which were disadvantageous to their indigenous populations. This problem touches upon the dichotomy of law and material justice as such. Acts that, had they been committed in recent times, would amount to genocide, de facto slavery, and severe breaches of humanitarian law and human rights, might evade sanctions (Human Rights and Humanitarian Law; Humanitarian Law, International) because the relevant rules did not exist at the time of the incident or were not applicable to colonies (see du Plessis 631; Fabricius 112–13, 156–61, 335–36, 343; Göcke 690–91). Because of the discriminatory nature of these rules and the notion of public international law as being an ‘inherited’ fate for the indigenous people, this result is questionable.
28 Suggestions have been made to apply posterior rules retroactively in as far as they reflect peremptory international law. The principle of intertemporality could be questioned on the basis of the concept of natural law (Natural Law and Justice), which, however, cannot be invoked without detriment to the sovereign will of States as the origin of international law. For the same reason, the ability of ius cogens to fill lacunae in international law is limited, insofar as the concept in itself was not generally recognized, even by the end of the 19th century, and as it is intrinsically attached to the existence of an opinio iuris (see also de Wet 103). Ius cogens rules are, in principle, derived from the will of States and are therefore dependent on them. To this extent, the binding force of ius cogens has to be considered as limited, leaving no room for retroactivity (see du Plessis 636). This does not exclude the evolution of a rule of public international law, which might grant compensation to victims of acts that would constitute breaches of ius cogens as judged from today’s perspective, and where compensation might be paid by the successor of the State perpetrator or even the international community. The current practice of States does, however, not indicate the existence or even the development of such a norm. Likewise, as a rule, claims for compensation must be based on breach of a treaty or contract. It is doubtful whether this principle can be applied to the ‘protective agreement’, not only because the legal nature of such agreements is disputed (Koskenniemi 153), but also because of the subsequent incorporation of the indigenous party into the legal order of the colonial power. In sum, present public international law has not yet proven to be able to remedy the shortcomings related to the rules that, more than a century ago, applied to colonies and colonial peoples, and related practice.
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