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The Acquisition of Africa (1870–1914) – The Nature of International Law

By Mieke van der Linden

THE ACQUISITION OF AFRICA (1870–1914)

This rational idea of a peaceful, even if not friendly, the thoroughgoing community of all nations on the earth that can come into relations affect-ing one another is not a philanthropic (ethical) principle but a principle having to do with rights.

 Nature has enclosed them all together within determinate limits (by the spherical shape of the place they live in, a glo-bus terraqueus) [Globe of earth and water].

And since possession of the land, on which an inhabitant of the earth can live, can be thought only as possession of a part of a determinate whole, and so as possession of that to which each of them originally has a right, it follows that all nations stand originally in a community of land, though not of the rightful community of possession (communio) and so of the use of it, or of property in it;

instead, they stand in a community of possible physical interaction (com-mercium), that is, in a thoroughgoing relation of each to all the others of offering to engage in commerce with any other, and each has a right to make this attempt without the other being authorized to behave toward it as an enemy because it has made this attempt. –

This right, since it has to do with the possible union of all nations with a view to certain universal laws for their possible commerce, can be called cosmopolitan right (ius cosmopoliticum).1

Just as in international law the land-appropriating state could treat the public property (imperium) of appropriated colonial territory as leader-less, so it could treat private property (dominium) as leaderless.

It could ignore native property rights and declare itself to be the sole owner of the land; it could appropriate indigenous chieftains’ rights and could do so whether or not that was a true legal succession;

it could create private government property while continuing to recognize certain native use rights; it could initiate public trustee-ownership of the state; and it also could allow native use rights to remain unchanged, and could rule over indigenous peoples through a kind of dominium eminence […].2