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Craven, Matthew (2015)
Publisher: OUP
Languages: English
Types: Article
Subjects: 4450, 4000, 8500, 8010
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    • 10 Crowe (1942) 4-5. See also JD Hargreaves, Prelude to the Partition of West Africa (Macmillan, 1963) 337 ('The importance of the Berlin Conference has often been misrepresented and exaggerated . . . Nor is it true that the Conference “partitioned Africa”'); H Wesseling, 'The Berlin Conference and the Expansion of Europe: A Conclusion', in Fo¨rster et al. (eds) (1988) 527, 531-32; Ewans (2002) 97-98 ('Apart from establishing the (qualified) principle of free trade, the Conference of Berlin was, in fact, of less practical significance than has been generally supposed').
    • 11 Pakenham (1991) 254. What Pakenham is prepared to admit for the Conference is what he calls the 'spirit of Berlin': 'For the first time great men like Bismarck had linked their names at an international conference to Livingstone's lofty ideals: to introduce the “3 Cs”-commerce, Christianity, civilisation-into the dark places of Africa.'
    • 12 See R Robinson, 'The Conference in Berlin and the Future of Africa, 1884-1885', in Fo¨rster et al. (eds) (1988) 1, 16. Schmitt describes the contradictory character of the General Act as documenting 'the continuing belief in civilization, progress, and free trade, and of the fundamental European claim based thereon to the free, i.e., non-state soil of the African continent open for European land-appropriation'. C Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. GL Ulmen (Telos Press, 2006) 216.
    • 13 J Fisch, 'Africa as terra nullius: The Berlin Conference and International Law', in Fo¨rster et al. (eds) (1988) 347.
    • 14 See, e.g., J Hargreaves, 'The Berlin Conference, West African Boundaries, and the Eventual Partition' in Fo¨rster et al. (eds) (1988) 313.
    • 16 WR Louis, 'The Berlin Congo Conference', in P Gifford & WR Louis (eds), France and Britain in Africa (Yale UP, 1971) 167, 218.
    • 17 M Foucault, Discipline and Punish: The Birth of the Prison, trans. A Sheridan (Vintage Books, 1977) 300-01.
    • 18 Cf. Robinson (1988) 32 ('So far as free trade was the purpose of Bismarck's Conference, it defeated its own object').
    • 23 Robinson (1998) 3. ('Rejected in Paris and Berlin, intrigued against in Brussels, decried by merchants in Manchester and patriots in Lisbon, and the Anglo-Portuguese Treaty had been sabotaged by mid-June'). See generally Anstey (1962); Fitzmaurice (1905) 344-54; Crowe (1942) 23-33.
    • 24 The Comite´ d'e´tudes du Haut Congo was the executive arm of a syndicate set up by Leopold in 1878 financed by private subscription which included, among others James Hutton, William MacKinnon and a Dutch company Africaansche Handelsvereeniging. The Dutch Company, one of the largest subscribers, went bankrupt in the same year leading to its formal dissolution. N
    • 25 See PA Roeykens, Le´opold II et l'Afrique, 1855-1880 (ARSC, 1958) 13-39; PA Roeykens, Le´opold II et la Confe´rence Ge´ographique de Bruxelles, 1876 (ARSC, 1956); Anstey (1962) 60.
    • 26 On the AIC see generally J Stengers, 'Leopold II and the Association Internationale du Congo', in Fo¨rster et al. (eds) (1988) 229.
    • 27 While many States were appreciative of this idea, the British Foreign Office was deeply sceptical. See, e.g., HP Anderson, 'Nature of the King of the Belgians', 2 March 1884, FO 84/1809, 233-35. The fact that the Association's agreement with France in May 1884 appeared to give France a 'right of option' in relation to the assets of the Association only reinforced this view. Hertslet (1909) vol. 1 244-46.
    • 28 See Plessen to Granville, 8 October 1884, C.4205, No 10, in Gavin & Betley (1973) 41-42.
    • 29 See HP Anderson, 'Memorandum: 1, West Africa Conference', 14 October 1884, FO 403/46, No 26-2, in Gavin & Betley (1973) 47-48.
    • 33 Chapter I Declaration relative to Freedom of Trade in the Basin of the Congo, its Mouths and circumjacent Regions, with other Provisions connected therewith (Articles 1-7); Chapter II Declaration Relative to the Slave Trade (Article 9); Chapter III Declaration Relative to the Neutrality of the Territories Comprised in the Conventional Basin of the Congo (Articles 10-12); Chapter IV, Act of Navigation for the Congo (Articles 13-15); Chapter V, Act of Navigation for the Niger (Articles 26-33); Chapter VI, Declaration Relative to the Essential Conditions to be Observed in Order that new Occupations of the Coasts of the African Continent may be held to be Effective (Articles 34-35); Chapter VII General Dispositions.
    • 47 Declaration respecting Import Duties, 2 July 1890, in Hertslet (1909) vol. 2, 517. Under the same authorisation, a separate scheme was established in relation to the Eastern Zone of the Conventional Basin of the Congo by agreement between Britain, Germany and Italy. Ibid 518. This was to survive until 1901.
    • 48 The British Foreign Office produced a 265-page brief accusing King Leopold of having violated the 'spirit of the Berlin Act'. FO 371/117. See generally Cookey (1968).
    • 49 Article 13 of the Treaty of St Germain, 10 September 1919 ('Except in so far as the stipulations contained in Article 1 of the present Convention are concerned, the General Act of Berlin of February 26th, 1885, and the General Act of Brussels of July 2nd, 1890, with the accompanying Declaration of equal date, shall be considered as abrogated, in so far as they are binding between the Powers which are Parties to the present Convention').
    • 50 The provisions relating to the navigation on the Niger, however, were later denounced in the Act Relating to Navigation and Economic Cooperation between States of the Niger Basin (1963). 587 UNTS 8506.
    • 51 See M Sorensen, 'The Modification of Collective Treaties without the Consent of all the Contracting Parties' 9 Nord TIR (1938) 150.
    • 52 BMS to FO, 23 March 1882, and Enclosed De Brazza Treaty, copy, FO84/1802. Controversy stemmed from the fact that de Brazza had not been afforded full powers at the time of concluding the agreement.
    • 53 See W Mommsen, 'Bismarck, the Concert of Europe, and the Future of West Africa, 1883-1885', in Fo¨rster et al. (eds) (1988) 151, 158-60. See also Note from the German Embassy, 15 October 1884, Documents Diplomatiques Franc¸ais, 1st Ser., vol. 5, No 431, in Gavin & Betley (1973) 347.
    • 54 HP Anderson, 'On Events Connected with the West African Conference', 21 October 1884, FO 403/ 46, No 55, in Gavin & Betley (1973) 58-59.
    • 55 J Thomson, Joseph Thomson, African Explorer (Samson Low, Marston & Co, 1896) 137, 143, 160.
    • 56 See A Perras, Carl Peters and German Imperialism 1866-1918. A Political Biography (Clarendon Press, 2004).
    • 57 Convention (France-IAC), 5 February 1885, in Hertslet (1909) vol. 2, 152, 564.
    • 58 Convention (Portugal-IAC), 14 February 1885, in Hertslet (1909) vol. 2, 169, 591.
    • 59 Further delimitation of boundaries on the coastline of West Africa continued in subsequent years. See Hargreaves (1988) 314-17.
    • 60 See, e.g., Convention between the German Empire and the International Association of the Congo, 8 November 1884, in Gavin & Betley (1973) 266-27; Convention between Her Britannic Majesty's Government and the International Association of the Congo, 16 December 1884, in Gavin & Betley (1973) 269-71. These provided the model for subsequent agreements with Austria-Hungary (Declarations of 24 December 1884, in Hertslet (1909) vol. 2, 543), Denmark (Convention of 23 February 1885, in Hertslet (1909) vol. 2, 561), France (Convention of 5 February 1885, in Hertslet (1909) vol. 2, 564), Italy (Convention of 5 February 1885, in Hertslet (1909) vol. 2, 564), Netherlands (Convention of 27 December 1884, in Hertslet (1909) vol. 2, 589), Portugal (Convention of 14 February 1885, in Hertslet (1909) vol. 2, 591), Russia (Convention of 5 February 1885, in Hertslet (1909) vol. 2, 598), Spain (Convention of 7 January 1885, in Hertslet (1909) vol. 2, 599), Sweden and Norway (Convention of 10 February 1885, in Hertslet (1909) vol. 2, 601), and the US (Declarations of 22 April 1884, in Hertslet (1909) vol. 2, 602).
    • 63 For the role of the General Act in shaping subsequent designs for the Mandate system see WR Louis, Great Britain and Germany's Lost Colonies (Clarendon Press, 1967) chs 3, 4.
    • 64 See, e.g., Fisch (1988) 360 ('Strictly speaking, the colonial acquisition of Africa needed no justification. The Europeans had the necessary strength and, even within Europe, the right of conquest was widely accepted both in theory and state practice . . . It was understood, however, that there should be proper justification'); Onuma (2000) 44-45 ('It was thus evident that in the General Act the concept of civilization and its formulation in terms of international law played a critical role in justifying European colonization of Africa in two ways: by balancing conflicting interests among the European powers, and by legitimating their “effective authority,” i.e., European colonial rule in Africa').
    • 65 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), Separate Opinion of Vice-President Ammoun, ICJ Reports (1971) 55, 86.
    • 71 See generally R Johnston, Sovereignty and Protection (Duke UP, 1973) 167-86.
    • 72 See, e.g., Granville to Malet, 14 January 1885, FO 403/49, No 92, in Gavin & Betley (1973) 103-04 ('There is an important distinction between annexations and Protectorates. Annexation is the direct assumption of territorial sovereignty. Protectorate is the recognition of the right of the aborigines, or other actual inhabitants, to their own country, with no further assumption of territorial rights than is necessary to maintain the paramount authority and discharge the duties of the protecting Power').
    • 73 It is perhaps revealing that the General Act routinely employs the phrase 'rights of sovereignty or protectorate' (e.g. in Articles 7, 8, 10, 11 and 30). In contrast, in Articles 6 and 9 the phrase 'sovereign rights or influence' is employed. The contrast alluded to, thus, is between 'sovereignty' and some other (de facto?) form of legal authority.
    • 75 For an argument that Stanley's treaties on behalf of the AIC did not purport to confer sovereignty see T Jeal, Stanley: The Impossible Life of Africa's Greatest Explorer (Yale UP, 2007) 281-88. But see Stanley (1885) vol. 2, 379. A selection of treaties concluded in the name of the Comite´ d'e´tudes is found in Wack (1905) 487-91. See more generally S Touval, 'Treaties, Borders and the Partition of Africa' 7 Journal of African History (1966) 279; J Stengers, 'King Leopold and Anglo-French Rivalry, 1882-1884', in Gifford & Louis (eds) (1971) 121, 129-31.
    • 77 Selbourne to Pauncefote, 23 January 1885, FO 403/49, No 183, in Gavin & Betley (1973) 108, 109. See generally Johnston (1973) 32-53.
    • 78 See, e.g., Courcel to Ferry, 30 August 1884, in Gavin & Betley (1973) 331, 333.
    • 79 See, e.g., Crowe (1942) 186-91; Louis (1971) 211-14.
    • 80 See, e.g., E De Vattel, The Law of Nations or Principles of Nature Applied to the Conduct and Affairs of Sovereigns, vol. 1 (S Campbell, 1796) vii, s. 209.
    • 81 F Martitz, 'Occupation des territoires: Rapport et projet de resolutions presents a` l'Institut de droit international' 19 Revue de droit international (1887) 371. On this see A Fitzmaurice, 'The Genealogy of Terra Nullius' 129 Australian Historical Studies (2001) 1, 10-11; A Fitzmaurice, Sovereignty, Property and Empire: 1500-2000 (Cambridge UP, 2014) 285-90; Koskenniemi (2001) 150-51.
    • 82 Fisch (1988) 354-60.
    • 83 J Westlake, International Law, vol. 1 (Cambridge UP, 1910) 123-24; Fisch (1988) 364-69. For a contemporary interpretation of this history (that assumes the 'colonial protectorate' to have already been an established category in 1884) see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment), ICJ Reports (2002) 303, 399-407.
    • 86 'Memorandum on the Formalities necessary for the effective Annexation of Territory', 18 December 1884, FO 84/1818. See R Louis (1988) 209.
    • 87 On the work of the Institut in this respect see Koskenniemi (2001) 98-178; Fitzmaurice (2014) 271-301.
    • 88 E Engelhardt, Intervention in Plenary Discussion, X Annuaire de Institut de Droit International (1888-1889) 177-79, 181-82 (proposing that the institute should declare that 'arrangements avec les chefs indige`nes' should become the rule in cases of occupation of non-civilised territory).
    • 96 Nys (1901) 14-15, 54-56. See generally Koskenniemi (2001) 157-66.
    • 97 Koskenniemi (2001) 165. Schmitt remarks that its recognition 'opened the door to the confusion, whereby an international colony was treated as an independent state. The core concept of the traditional interstate European international law thus was thrown into disorder'. Schmitt (2003) 217.
    • 98 See, e.g., J Reeves, 'The Origin of the Congo Free State Considered from the Standpoint of International Law' 3 American Journal of International Law (1909) 99, 101-02. The same issue was to arise in relation to the treaties concluded by Goldie's National African Company in which it was decided that a protectorate had to be established over the Niger delta prior to the grant of any Charter. See generally, Johnston (1973) 187-96.
    • 99 For Pauncefote, in the British Foreign Office, the Association had not being recognised as a state at all, but simply as the representative government of 'certain “Free States” created by Treaties with “legitimate Sovereigns” in the basins of the Congo and adjacent territories'. Memorandum by Sir Julian Pauncefote, 2 December 1884, in Gavin & Betley (1973) 77.
    • 100 See Gathii (2005) 101-04.
    • 101 Oscar Chinn Case (UK v Belgium) (Judgment), PCIJ Reports Series A/B No 63.
    • 105 See generally J Gallagher & R Robinson, 'The Imperialism of Free Trade' 6 Economic History Review (1953) 1; B Semmel, The Rise of Free Trade Imperialism: Classical Political Economy and the Empire of Free Trade and Imperialism 1750-1850 (Cambridge UP, 1970).
    • 106 See generally A Brewer, Marxist Theories of Imperialism: A Critical Survey (Routledge, 1980); B Semmel, The Liberal Ideal and the Demons of Empire (Johns Hopkins UP, 1993); L Gann, 'Reflections on Imperialism and the Scramble for Africa', in Duignan & Gann (eds) (1969) 100.
    • 107 R Luxemburg, The Accumulation of Capital (Routledge, 2003).
    • 108 L Wolff, Empire and Commerce in Africa (George Allen & Unwin, 1920) 21-49.
    • 109 J Hobson, Imperialism: A Study (J Pott, 1902); R Hilferding, Finance Capital: A Study in the Latest Phase of Capitalist Development, trans. M Watnick & S Gordon (Routledge, 1981); V Lenin, Imperialism, the Highest Stage of Capitalism: a Popular Outline (International Publishers, 1939) [1916].
    • 127 See generally A Hochschild, King Leopold's Ghost: A Story of Greed, Terror and Heroism in Colonial Africa (Houghton Mifflin Co, 1998); R Anstey, King Leopold's Legacy: The Congo under Belgian Rule 1908-1960 (Oxford UP, 1966) 1-10.
    • 129 See Sandford proposal, Protocol 3, 27 November 1884, in Gavin & Betley (1973) 147; Bontinck (1966) 248-49. The project was opposed by both France and Portugal. Thomson (1933) 342; Bontinck (1966) 250.
    • 130 See Lambermont, Protocol 3, 27 November 1884, in Gavin & Betley (1973) 146.
    • 131 As Robinson notes, both Ferry and Bismarck seemed clear, prior to the Conference, that 'the free trade principle required a partition of the interior'. Robinson (1988) 7. See Minute by Lister, 14 October 1884, FO 403/46, No 26, in Gavin & Betley (1973) 46 ('It seems almost necessary that the whole course of the Congo should be annexed by European Powers before the principle of freedom of commerce could be established').
    • 144 R Slade, King Leopold's Congo: Aspects of the Development of Race Relations in the Congo Independent State (Oxford UP, 1962) 175-92; Stengers (1988) 268-71.
    • 145 Hochschild (1998) 94-95. Belgium later paid substantial sums to Leopold on assuming responsibility for the Congo in 1908. Ibid 258-59.
    • 146 See Robinson et al. (1981) ch. 13.
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