THE STATE AND INTERNATIONAL LAW
In view of the confused controversy that has prevailed between the
friends and the enemies of the Congo Free State, concerning its legal
foundation and its existence _de facto_ before the Conference of
the Powers which recognised its statehood at Berlin (November 15,
1884-February 26, 1885), it seems pertinent at this point to examine
the issue at some length.
[Sidenote: Central Africa Reviewed.]
For unknown centuries Central Africa had been peopled with many
millions of savage, semi-savage, and barbarian black men, hidden
from all civilising influence. Their social condition varied. Many
were cannibals, some were living in a rude state of primitive tribal
order, others were at incessant war with hostile tribes, all were
living in the gloom of an interminable night of barbaric existence.
Their only touch with the human family had been through the slave
trade, of which they were the object and the victims. The white man
knew of their lot in this respect many years before he listened
attentively to an appeal for deliverance from the Arab marauders who
enslaved them. The natural law of human solidarity had not as yet
inspired civilised nations with an energetic movement to ameliorate
the condition of the savage black in Mid-Africa. Indeed, Stanley’s
explorations had not gone to completion save for the enlightened and
philanthropic moral and material support of Leopold II. When Great
Britain declined to provide Stanley with the means to further his
brave work, the King of the Belgians, having several years before
openly associated himself with sentiments seeking the organisation
of a consistent civilising movement in Central Africa, sent for this
intrepid explorer and fortified his hopes and plans from his private
purse. It was with the highest motives, from an elevated point of
view, that his Majesty considered the situation of these cannibal
tribes. His solicitude for the Belgians, their economic needs, their
legitimate and necessary expansion, gave point to his consideration
of a distant land, where great natural wealth lay unrevealed and
unused, for the good of the native and his benefactor. A wild life
abounded in those parts which by civilisation might be regenerated
and brought into the sphere of human usefulness. Here opportunity
seemed to throw wide her arms for the Prince with the courage to
dare an undertaking which the great Powers and the small had so far
deftly avoided. “I will pierce barbaric darkness; I will secure to
Central Africa the blessing of civilised government. And I will, if
necessary, undertake this great task alone.” So spake his Majesty,
when, as Duke of Brabant, he electrified Europe with what Europe, in
her narrowed conservatism, regarded as the utopian utterances of an
impractical and effervescing youth. Europe smiled and shrugged her
shoulders at the temerity of him who essayed to analyse the heart of
Africa and prescribe its panacea.
If this great task had fallen upon a man of ordinary natural powers
and acquired means, that part of Darkest Africa which now defies the
organised conspiracy of the despoiler would interest nobody save
the slave-trader who terrorised the land and polluted the sea with
the black man’s blood. To his Majesty’s great initiative in 1876,
and to his prescience of mind, his generous hand, and astonishing
industry in the cause which inspired him are due those two decades
of progress which some regard as a triumph of Colonial civilisation;
while others, from motives which need not be examined with a lens,
stigmatise it as the curse of Central Africa.
Point of view and interest are important elements in all controversy.
Where so much has been charged and refuted, a judicial attitude is
sometimes maintained with difficulty. But against the assertion that
the Congo Free State is a creation of the General Act of the Berlin
Conference, may be arrayed a body of well-settled law which only an
unreasoning enemy or a paid advocate would have the hardihood to
dispute.
[Sidenote: Simple Facts Briefly Told.]
Long before the Berlin Conference had been conceived, acts of
government had been effecting organisation and order in the territory
now known as the “Independent State of the Congo.” Legislation,
one of the later signs of established government, had occurred in
the territory acquired by the _Comité d’Études du Haut-Congo_,
of which King Leopold was honorary president and Colonel Strauch
president.
[Illustration: Taking Merchandise to the ss. “Leopoldville.”]
The conception of the State was that of the King personally; the
character of its governmental manifestations was surcharged with
his personality; its being was crystallised by his own touch and
modelling. It is error to confound the recognition of the State by
the Berlin Conference as the act which created the State. Recognition
presupposes existence, and in the case of the Congo Free State
there had been, for a considerable time before the adoption of
the General Act of the Berlin Conference, a government _de facto_
in the territories under the dominion of the _Comité d’Études du
Haut-Congo_. Indeed, before the Berlin Conference had adopted the
General Act, the State was qualified to announce, and did notify the
Conference, that it had been recognised by all the Powers except
one, which, however, soon thereafter followed the example of the
other signatories. It was as a State, standing on an equality with
the other Powers, that the Congo Free State attended the Berlin
Conference and, under Article 37, adhered to an Act which did not
deal with the sovereignty of States at all, but confined itself to
a consideration of an economic _régime_ applicable throughout the
Congo Basin, including the territories therein of Great Britain,
France, Germany, Portugal, and the Congo Free State. Events anterior
to its introduction to the Conference as a friendly State by Prince
Bismarck do not depend for their quality upon the form of that
introduction. They are not destroyed by the peculiarity of phrase
or the spontaneous honour which accompanied its entrance into the
society of nations. That which does not exist cannot be the object of
recognition. Even without the facts of the recognition by the United
States of the State’s flag (April 22, 1884) as that of a friendly
Government seven months before the Berlin Conference convened, and
its recognition by Germany seven days before the opening of the
Conference (November 8, 1884), the State contends that it was a State
_in esse_, a Government _de facto_, fully organised and qualified
to maintain itself as such within the territory it had acquired by
cession from the native tribal chiefs and by prior occupation.
An examination of competent authorities on this important phase
of Congolese civilisation convinces us that the idle contention
which questions the State’s independence of the Powers signatory
of the General Act of Berlin has been brought forth merely for its
cumulative effect, not for its inherent power to sustain itself.
The subject may be approached by two questions: What is a State? What
is a Government?
“A State ... implies the union of a number of individuals in a fixed
territory, and under one central authority. Austria-Hungary is a
State, but, as Prince Gortchakoff once sarcastically remarked, ‘It is
a Government, and not a nation.’”
The Constitution of the United States defines the term _State_ as
combining the idea of people, territory, and government. Defining
the difference between a government in law and a government in fact,
Montague Bernard says, in _Neutrality of Great Britain during
American Civil War_: “A _de jure_ government is one which, in the
opinion of the person using the phrase, ought to possess the powers
of sovereignty, though at the time it may be deprived of them. A
_de facto_ government is one which is really in possession of them,
although the possession may be wrongful or precarious.”
In Tharington _v._ Smith, 8 Wallace, 8-11, the Court said:
There are several degrees of what is called _de facto_ government.
Such a government in its highest degree assumes a character very
closely resembling that of a lawful government.... There is
another species of _de facto_ government, and it is one which
may be perhaps aptly called a government of paramount force.
Its distinguishing characteristics are: That its existence is
maintained by active military power, within the territories ... etc.
In Wheaton’s _Elements of International Law_, the latest edition of
the leading authority on the subject, the author maintains that:
The recognition of any State by other States, and its admission
into the general society of nations, may depend, or may be made
to depend, at the will of those other States, upon its internal
constitution or form of government, or the choice it may make
of its rulers. But whatever be its internal constitution, or
form of government, or whoever may be its rulers, or even if it
be distracted with anarchy, through a violent contest for the
government between different parties among the people, the State
still subsists in contemplation of law, until its sovereignty is
extinguished by the final dissolution of the social tie, or by some
other cause which puts an end to the being of the State.
... The internal sovereignty of a State does not, in any degree,
depend upon its recognition by other States. A new State, springing
into existence, does not require the recognition of other States to
confirm its internal sovereignty. The existence of the State _de
facto_ is sufficient, in this respect, to establish its sovereignty
_de jure_. It is a State because it exists.
Thus the internal sovereignty of the United States of America was
complete from the time they declared themselves “free, sovereign
and independent States,” on the 4th of July, 1776.... The treaty of
peace of 1782 contained a recognition of their independence, not a
grant of it.
The external sovereignty of any State, on the other hand, may
require recognition by other States in order to render it perfect
and complete. So long, indeed, as the new State confines its action
to its own citizens, and to the limits of its own territory, it may
well dispense with such recognition.
The principles thus indicated would appear to distinguish with marked
certitude the vast difference between the State’s existence and its
recognition. The latter was a political consequence of the former.
At the Berlin Conference no question was raised concerning a fact
so patent, nor did the signatories distinguish between the five
Powers in possession of the Congo Basin in framing the clauses of the
Berlin Act imposing the same obligations on all these Governments.
Those obligations related only to their economic _régime_ in Central
Africa. The articles of the Act concerning the Congo Basin, which
applied to the Independent State of the Congo, were also binding
upon Great Britain, France, Germany, and Portugal. This sign of
equality is inconsistent with the notion that the Congo Free State is
the vassal territory of the Powers signatory of the General Act of
Berlin.
It has been contended by technicians of the law of nations who are
in the service of those who seek to disrupt the Congo Free State,
that a State cannot accrue out of a private association, such, for
instance, as the International African Association or the _Comité
d’Études du Haut-Congo_. But just as events are constantly spoiling
theories, so had the flag of the Belgians confounded that contention
by demonstrating in a practical manner that a State _did_ exist,
and that all the elements of a State government were present in the
neighbourhood of Stanley Pool long before the Berlin Conference.
The identity of a State consists in its having the same origin
or commencement of existence; and its difference from all other
States consists in its having a different origin or commencement
of existence.... The habitual obedience of the members of any
political society to a superior authority must have once existed in
order to constitute a sovereign State.[1]
American writers on the subject are of opinion that the North
American Indian in his aboriginal state was not a political
unit of the United States at the time when the Union declared
its independence. In Johnson _v._ McIntosh, 8 Wheaton, p. 543,
Chief-Justice Marshall described their status in the following
language:
The Indian inhabitants of the United States are to be considered
merely as occupants, to be protected, indeed, while in peace,
in the possession of their lands, but to be deemed incapable
of transferring the absolute title to others independent of
territorial sovereignty.
To this may be added the apposite declaration of Mr. Fish, Secretary
of State, to Mr. Hackett, June 12, 1873:
Aboriginal inhabitants in a savage state have not such a title to
the land where they dwell or roam as entitle them to confer it upon
persons from another country.
[Sidenote: A Strange Fallacy.]
The Congo State law to which the foregoing declaration applies will
be discussed in the chapter on the State Lands and Concessions. The
citation is offered here merely for its general bearing upon the
doctrine put forth by certain writers who contend that barbarous
races living in primitive conditions upon lands over which civilised
government has not been established, attain to the organic level of
political units or citizenship upon the recognition of the government
which dominates them with either its civil or its military power.
That doctrine, it seems to us, is untenable. There is, on the
other hand, no doubt that savage races can, by the symbols and the
operating functions of government, humanely enforced according to
the conditions with which it must cope, be brought to the knowledge
of, and obedience to, an orderly civil community. The instruments
of civilisation must vary with the various character of the life
upon which they are to operate effectively. Yet there are strabismic
monitors of African civilisation who, representing no high moral
standard in themselves, have laid down a rule of conduct for the
Congo Free State which disregards that principle. It has been this
narrow view of a liberal civilising scheme that has caused so much
mischievous mewling in Great Britain concerning alleged misrule in
Central Africa.
[Illustration: State Post at Yankomi, near Basoko, Surrounded by
Palisade (Aruwimi).]
The foundation of the Congo Free State really began with the
organised movement and structures of the _Comité d’Études du
Haut-Congo_ on November 25, 1878. The expedition of Stanley on August
14, 1879, was an earnest of the Committee’s intention to establish
the institutions of a permanent local government with all practicable
speed.
The Belgian post of Vivi was the first monument fixed in the wake
of Stanley. On February 21, 1880, Isanghila was established, and on
May 1, 1881, Manyanga was occupied. In the following December the
expedition arrived at Stanley Pool, and reconstructed the steamboat
_En Avant_, which, having been dismantled, had been carried in small
sections through the forest to this point above the cataracts. In
a short time this pioneer craft bore Stanley up the Congo River to
accomplish the dream of Leopold II.
Many stations were established, steamers began running between them,
treaties were concluded with the chiefs of independent native tribes
to protect the territory so occupied against the claims of subsequent
explorers; administrative and police services were required, and
all the effective essentials of a central authority and an actual
government were then and there established.
At this juncture the Committee changed its name to the International
Congo Association and redoubled its activities. The Niadi Kwilu
Basin was explored; that important factor in late Congo prosperity,
the Upper Kassai, was brought under the influence of Belgian
regeneration, and the Lunda country and districts beyond were taken
within the Government’s sphere.
In five years discoveries of great value had been made in Darkest
Africa, hundreds of tribes had been peacefully visited, over five
hundred treaties of suzerainty had been made with the ruling chiefs,
forty stations had been erected and their complement of officers put
to the work of administering a definite system of local government,
and five steamers on the Upper Congo were regularly communicating
the affairs of a Government which now effectively controlled all the
territory between the East Coast and Stanley Falls, between Bangala
and Luluabourg.[2]
This, then, was the position of the Government in the Congo Basin in
1883, long before the Berlin Conference. The status that Government
acquired as a consequence of its administrative acts in, and dominion
over, the territory it occupied, has been briefly indicated from the
point of view of American authorities on the subject of international
law. Before examining the leading European authorities, whose
approaches to the subject are peculiar to European experience and
learning, it is interesting to observe how consistently the action of
the Government of the United States followed the American view of the
law on the subject.
[Sidenote: A Learned Belgian.]
Baron A. Descamps’ _New Africa_, an excellent essay on government
civilisation in new countries, embodies a concise statement of what
occurred in the fortunes of the infant State early in 1884, when its
progressive work had extended a civilising influence to those regions
of the Congo Basin where the Arab slave trade had not retained its
devastating sway. The writer says:
The practical sympathy speedily accorded to the International Congo
Association by the greatest Power of the New World, the United
States of America, full of life and vigour and ever inclined to
progress, proved that King Leopold’s enterprise had secured public
support and official suffrage far beyond the limits of Europe. On
April 10, 1884, the American Senate, on Mr. Morgan’s remarkable
report,[3] passed a resolution asking the President of the United
States to recognise the Association “as the governing power of the
Congo.” A few days later, on April 22, 1884, that recognition was
an accomplished fact. In officially recalling, at the opening of
the Berlin Conference, the nature and cause of this great Act, Mr.
Kasson, Chief Plenipotentiary of the United States, pointed out
that, following upon Stanley’s explorations, the newly discovered
regions “would be exposed to the dangerous rivalries of conflicting
nationalities. It was the earnest desire of the Government of
the United States that these discoveries should be utilised for
the civilisation of the native races, and for the abolition of
the slave-trade; and that early action should be taken to avoid
international conflicts likely to arise from national rivalry
in the acquisition of special privileges in the vast region so
suddenly exposed to commercial enterprises.” Referring to the work
so effectively performed by the International Congo Association
“under high and philanthropic European patronage,” he said that
those gallant pioneers of civilisation had “obtained concessions
and jurisdiction throughout the basin of the Congo from the
native sovereignties which were the sole authorities existing
there and exercising dominion over the soil or the people. They
immediately proceeded,” added he, “to establish a Government _de
facto_.” Declaring next that the legality of the acts of that
Government should be recognised, under penalty of recognising
“neither law, order, nor justice in all that region,” he concluded
as follows: “The President of the United States, on being duly
informed of this organisation, and of their peacefully acquired
rights, of their means of protecting persons and property, and
of their just purposes towards all foreign nations, recognised
the actual government established, and the flag adopted by this
Association. Their rights were grounded on the consent of the
native inhabitants, in a country actually occupied by them, and
whose routes of commerce and travel were under their actual control
and administration. He believed that in thus recognising the only
dominant flag found in that country he acted in the common interest
of civilised nations.”
“In so far,” said the American Plenipotentiary, “as this neutral
and peaceful zone shall be expanded, so far he foresees the
strengthening of the guarantees of peace, of African civilisation,
and of profitable commerce with the whole family of nations.”[4]
Such was the position taken up by the United States of America
in regard to the recognition of the newly installed government
in Equatorial Africa. Germany was the first European Power to
consider this subject of recognition, and to accord to the new
enterprise marks of its sympathy and the support of its authority.
In acknowledging, by the Convention of _November 8, 1884_,
concluded _before_ the Berlin Conference opened, the flag of the
International Congo Association “as that of a friendly State,”
the German Government clearly indicated that, so far as it was
concerned, the new State ought to take its place from the first
among the Powers called to the Conference.
[Sidenote: Another Learned Belgian.]
M. Ernest Nys, Professor of International Law of the University of
Brussels, Associate Justice of the Court of Appeal (_Conseiller à la
Cour d’Appel de Bruxelles_); member of the Institute of International
Law, a distinguished Belgian, and writer on several branches of
the law, sets forth with greater detail the precise form of the
recognition of the Congo Free State by the Senate of the United
States. M. Nys relates:
In his annual message to Congress the President of the United
States raised the question of the relations which were henceforth
to be established between the Republic and “the inhabitants of the
Congo Valley in Africa.” On 26th May, 1884, Mr. Morgan (Alabama)
reported to the Senate in the name of the Committee on Foreign
Relations.
On 18th January, 1884, a communication from Mr. Frelinghuysen,
Secretary of the State Department, explained to Mr. Morgan how
along the Congo the African International Association had created
important establishments. On 13th March of the same year a further
communication from Mr. Frelinghuysen set forth the opportuneness
and the usefulness of recognising the flag of the Association, and
added that no principle of international law was opposed to the
creation of a State by a philanthropical society.
In his report of 26th March Mr. Morgan recalled the fact that
Stanley had concluded at Vivi on 13th June, 1880, the first
convention with a native chief, and that since that date nearly
a hundred other treaties between tribal chiefs and the agents of
the Association had been concluded, in which important commercial
arrangements and stipulations relative to law, the maintenance of
order, and the delegation of power figured among the provisions.
Consequently two hypotheses presented themselves. “If the local
rulers,” said Mr. Morgan, “were qualified to make the cession
they did, the sovereign power that they conferred on the African
International Association might obtain recognition on the part of
other nations precisely because that Association thus proves its
existence as a Government by law. If,” he added, “there exists any
doubt concerning the sovereignty or the territory or the subjects,
the understanding among the native tribes who conclude treaties
with the Association offers a sufficient guarantee to other peoples
for recognising the Association as a Government in fact.”
The Committee on Foreign Relations made a motion in favour of the
recognition of the Association. It is permissible to affirm that at
this moment a juridical person already existed, which could claim
the principal rights of a State, and which found itself prepared
to fulfil the duties of one. The first direction of the efforts
of the Committee for studying the Upper Congo had been indicated
in July, 1879, in the instructions given to Stanley. “It would
be wise,” wrote Colonel Strauch, “to extend the influence of the
stations over the chiefs and tribes inhabiting the neighbourhood.
There might be made out of them a republican confederation of free
Negroes, an independent confederation under this reservation,
that the King, to whom its conception and creation would be due,
should nominate its President who was to reside in Europe....
A confederacy thus formed might of its own authority grant
concessions to companies for the construction of works of public
utility, or issue loans, as Liberia and Sarawak do, and also itself
execute public works. Our enterprise does not tend to the creation
of a Belgian Colony but to the establishment of a powerful Negro
State.”[5] But the political idea was not slow in taking a precise
form. If in Mr. Morgan’s report there is still question of _the
Free States of the Congo_ the conclusion did not the less relate,
as we have just seen, to the African International Association.
[Illustration: Europeans at Stanleyville, 1902.]
It was it which was [_sic_], according to the Committee on
Foreign Relations of the Senate, in law or in fact a “Government”
qualified to claim international recognition.
Besides, the solution was very soon effected. The Government of
the United States recorded the existence of The International
Association of the Congo, managing the interests of the Free
States established in that region, and gave orders to all United
States officials on sea and on land to recognise the flag of the
International Association as the equal of that of a friendly
Government.
The following is the text of the declarations which were exchanged on
22d April, 1884:
The International Association of the Congo hereby declares that
by Treaties with the legitimate Sovereigns in the basins of the
Congo and of the Niadi Kwilu and in adjacent territories upon the
Atlantic there has been ceded to it territory for the use and
benefit of Free States established and being established under the
care and supervision of the said Association in the said basins and
adjacent territories to which cession the said Free States of right
succeed.
That the said International Association had adopted for itself
and for the said Free States, as their standard, the flag of the
International African Association, being a blue flag with a golden
star in the centre.
That the said Association and the said States have resolved to
levy no custom-house duties upon goods or articles of merchandise
imported into their territories or brought by the route which has
been constructed around the Congo cataracts; this they have done
with a view of enabling commerce to penetrate into Equatorial
Africa.
That they guarantee to foreigners settling in their territories
the right to purchase, sell, or lease lands and buildings situated
therein; to establish commercial houses, and to carry on trade
upon the sole condition that they shall obey the laws. They pledge
themselves, moreover, never to grant to the citizens of one nation
any advantages without immediately extending the same to the
citizens of all other nations, and to do all in their power to
prevent the slave trade.
In testimony whereof, Henry S. Sanford, duly empowered therefor
by the said Association, acting for itself and for the said Free
States, has hereunto set his hand and affixed his seal this 22nd
day of April, 1884, in the City of Washington.
(L. S.) (Signed) H. S. SANFORD.
Frederick T. Frelinghuysen, Secretary of State, duly empowered
therefor by the President of the United States of America, and
pursuant to the advice and consent of the Senate, heretofore
given, acknowledges the receipt of the foregoing notification
from the International Association of the Congo, and declares
that, in harmony with the traditional policy of the United States,
which enjoins a proper regard for the commercial interests of
their citizens, while at the same time avoiding interference with
controversies between other Powers as well as alliances with
foreign nations, the Government of the United States announces its
sympathy with, and approval of, the humane and benevolent purposes
of the International Association of the Congo, administering, as it
does, the interests of the Free States there established, and will
order the officers of the United States, both on land and sea, to
recognise the flag of the International African Association as the
flag of a friendly Government.
In testimony whereof, he has hereunto set his hand and affixed his
seal this 22nd day of April, A. D. 1884, in the City of Washington.
(L. S.) (Signed) FREDERICK T. FRELINGHUYSEN.
[Sidenote: United States Leads the Way.]
We observe in the spontaneous recognition accorded the youthful
State—whatever its form of government may have been—prompt admission
of its qualification as a member of the society of nations. This
was before the signatory Powers to the General Act of Berlin had
opportunity of indicating that sympathy which they expressed
in substantial terms when they followed the example of the United
States and Germany, and invited the Congo Government to participate
in the Berlin Conference as a friendly State invested with all the
attributes of statehood which their recognition implied.
[Illustration: Post Office, Boma.]
It is contended by the advocates of the Congo Free State that the
form of its government at any time before or after recognition can
not in the slightest degree affect the question of the State’s actual
existence. It matters not, say the European authorities—Barboux,
Picard, Nys, Descamps, Van Berchem, Azcarate, de Martens, and
Pierantoni, whether the earlier Government was composed of “federated
Negro tribes”; a State ruled by monarchy; territorial and tribal
allegiance to an organised central authority; by an autocrat
employing civil and military powers, or any other scheme of equitable
and civilised domination. The right of the Government to _exist_
cannot be destroyed by latter-day technicalities of law adroitly
applied. The point to be noted, says Baron Descamps, is that “the
claim to the occupation of vacant territories and to the acquirement
by cession of sovereign rights was not inferior to the titles relied
upon by European Powers in the course of their colonial expansion.”
All this was an element patent in the State’s foundation, obviously
understood and admitted by the Powers which, while they assumed that
the Congo Basin contained nothing of material or political value
to excite their cupidity, they recognised and treated on a basis
of equality—so far, at least, as the considerations of the Berlin
Conference are concerned.
In the present chapter have been briefly considered the legal and
ethical aspects of the birth and baptism of the Congo Free State,
its romantic evolution from the enlightened forces put into play
by the indomitable personal powers of a Prince of the House of
Saxe-Coburg-Gotha. In a succeeding chapter will be observed how the
obligations imposed by the General Act of Berlin were discharged by
the several Powers which assumed them.[6]
[Illustration: Native Boys, Boma.]
FOOTNOTES:
[1] Wheaton’s _International Law_.
[2] _L’État Indépendant du Congo_, M. Wauters, p. 27.
[3] See _Compilation of Reports of Committee on Foreign Relations_.
United States Senate. _Recognition of Congo Free State._ March 26,
1884, Washington, Government Printing Office, 1902. Vol. vi., p.
221. The appendices include, among other documents, the notes of Sir
Travers Twiss and Mr. Arntz.
[4] _Protocoles et Acte Général de la Conférence de Berlin_
(1884-85), p. 23 ss.
[5] F. Cattier, _Droit et Administration de l’État Indépendant du
Congo_, 1898, p. 17.
[6] For a full report of the Committee on Foreign Relations to the
Senate of the United States, March 26, 1884, together with the
Treaties of Vivi, Leopoldville, Manyanga, and Stephanieville, see
Appendix.