Empire & International Law
The base effeminate Asiaticks and Africans, who for being careless of their liberty, or unable to govern themselves, were by Aristotle and other wise men called slaves by nature, and looked upon as little better than beasts. ~ English politician Algernon Sidney in the 1670s
The ancient world took it for granted that states extended their territories as best they could. Early observers made scant distinction between tribal associations, federations, multiethnic kingdoms, and empires.
Alexander the Great
Alexander III of Macedonia (356–232 BCE) (commonly known as Alexander the Great) ascended to the throne of the kingdom Macedonia at the age of 20 upon his father’s assassination. Alexander’s ambition knew no bounds.
Within 10 years, Alexander has conquered his way to an empire stretching from Greece to Egypt and into northwest India. In the process he overthrew the Persian empire, using over 90,000 men, including 120 ships and a cavalry of 6,000.
Incursions into India met resistance, not so much from the natives as his own troops, who were exhausted from years of battle, and longing for home.
Taking respite in Babylon, Alexander planned a series of new campaigns, beginning with an invasion of Arabia. His continuing appetite for destruction was curtailed only by dying at age 32. He may have been poisoned, or years of heavy drinking and war wounds may have taken their toll.
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The highest expression of human power is Empire. ~ Benito Mussolini
The term empire derives from the Latin imperium, which initially meant little more than command. Rome was recognized as an empire when it was still a republic, before it descended into tyranny.
History imparts impressions that cling to political labels. The timbre of democracy developed a deeper meaning after the American colonies cast off their British yoke. So too revolution after the French achieved it in 1789, and again in Russia in 1917. The concept of empire evolved with the maritime expansions of European nations that began in the late Middle Ages, as ships rounded the coast of Africa for lands beyond, and then crossed the Atlantic to find a shorter route to India.
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The Athenian “empire” of 5th century BCE incorporated nearby islands, as did the Republic of Venice that extended from its lagoon communities into the Adriatic sea in the 7th century. These were rare exceptions to empires built by overland conquests on the Eurasian landmass.
The Age of Discovery began in the 15th century, when European shipbuilding technology afforded voyages over vast distances. It quickly morphed into the Age of Imperialism.
The weaponry on board allowed these floating tribes of foreign invaders to establish trading posts and colonies, and to violently claim ownership of territories on the other side of the globe from the outgunned natives. Imperial adventures in the ancient world were seldom the lopsided encounters that were typical of this later time, when European powers terrorized distant peoples with overwhelming technologies as a prelude to sustained pillaging and subjection.
The results were astonishing. Europe is less than 7% of the planet’s land mass. In 1800, Europeans controlled 33% of the world. By 1914, their power had risen to over 80%.
Christopher Columbus
As soon as I arrived in the Indies, on the first island which I found, I took some of the natives by force. ~ Christopher Columbus.
Italian explorer Christopher Columbus (1450–1506) set the tone for later encounters when he inadvertently discovered the New World. Upon arrival in the Bahamas, the native Arawak men and women brought the intrepid sailors gifts.
Their hospitality was met with abuse and enslavement. From the beginning, indigenous peoples learned from civilized men what savagery really was.
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New ideas developed about the right of “civilized” peoples to rule the “savages” they encountered in faraway lands. The 2 main controversies about imperialism were its legality and its morality.
Encounters on foreign lands raised new questions about the legitimacy of claiming ownership over territory where the indigenous population did not hold private property as Europeans did, and the 2 parties had no shared system of positive law. The answer could only be arrived at based upon natural law or jus gentium principles. Jus gentium was the international law first developed during the Roman Empire and carried on as customary law.
2 of the hoariest issues that had relevance dealt with occurrences outside legal jurisdiction, particularly piracy and the obligation to succor strangers in need. If, like pirates, indigenes were in violation of natural law, they were subject to punishment, including forfeiture of property. Even if they were not, they had no right to refuse assistance to foreign newcomers, so interloper logic went.
In short, Europeans landing on foreign lands construed legal rights to their advantage, however the encounter went. Natives were destined to draw the short straw.
Discussion of these issues began among the Spanish, who started colonizing the New World in the early 16th century.
In principle, the Spanish royal government wished its new Amerindian subjects to be treated as if they were peasants in Spain: allotted a patron to whom they might owe tribute or perform labor for, but not to be enslaved per se. Unsurprisingly, there was a yawning gulf between official morality and the behavior of conquistadors far from home.
Ownership and dominion are based either on natural law or human law; therefore, they are not destroyed by want of faith. ~ Francisco de Vitoria
Spanish Catholic theologian, philosopher, and jurist Francisco de Vitoria (1483–1546) considered the moral implications of his country’s colonization and found them abhorrent. Vitoria denied that native peoples could be considered slaves by nature in Aristotelian terms.
Following jus gentium by way of Thomist scholasticism, Vitoria concluded in 1537 that Amerindians were owed the intrinsic dignity of mankind, which were violated by Spain’s New World policies.
In separating the issues of morality and justice from religion, Vitoria laid the foundation for international law and the concept of human rights. That warring states have responsibilities, and that non-combatants have rights, can be traced back to his teachings.
Ironically, Vitoria’s arguments were twisted to effectively counter his summary conclusion. Vitoria held that, while there was no general right to punish a transgressor against the law of nature per se, there was a duty to protect the innocent: not only if help is not asked for, but even if repudiated. This remains the logic behind intervention in domestic violence cases. Doubts about Vitoria’s argument revolve about the facts of particular cases rather than the principle.
As a good Dominican, Vitoria also insisted that Christians had an ius predicandi: the right to preach the gospel to whomever they could. Obstructing this was an act of war.
Moreover, the Spanish in the West Indies considered themselves ambassadors, and entitled to be treated as such.
With all that in mind, a punitive incursion was justified only if innocents and converts were not at risk. That left 2 possibilities: expelling malefactors or taking jurisdiction of their territory.
The 1st course of action was impractical, leaving the 2nd as lawful. Conquest and colonization were thus seen as legitimate by extension of Aquinas’ view of just war. This “might makes right” became the orthodox Thomist position.
A more extreme view was that infidels were de facto in a state of war with Christian civilization, and so may be rightly conquered and enslaved. This all-inclusive rationalization was precisely what Vitoria resisted, with Aquinas as theological backing.
Aquinas had held that rulers were not illegitimate just because they were infidels. War against them solely on religious difference was impermissible. This implied that there was no legitimate basis to overthrow Caribbean and South American rulers.
Reaching back to Aquinas’ philosophic wellspring – Aristotle – Spanish humanist, theologian, and philosopher Juan Ginés de Sepúlveda (1494–1573) argued in the mid-16th century that New World indigenes were natural slaves who should be returned to their natural condition. He based his position on assumption of native barbarism, backed by scattered remarks by Aristotle about “man-hunting.”
Spanish historian, social reformer, and Dominican friar Bartolomé de las Casas (1484–1566) countered Sepúlveda by writing a heartbreaking account of the decimation of Caribbean indigenes by conquerors from his country. Las Casas emphasized the innocence and gentleness of the natives in stark contrast to the savagery and rapacity of Spanish conquistadors.
Astonishingly, Spanish King and Holy Roman Emperor Charles V arranged a series of debates concerning the treatment of New World indigenes. Set in the Spanish city of Valladolid, Sepúlveda and las Casas squared off in 1550–1551. The controversy hinged on the question of whether Caribbean natives were capable of self-governance or were instead natural slaves à la Aristotle.
Once Spain had established colonies in the New World, it needed to establish their legitimacy. Charles wanted legal backing, since the French, Dutch, and English would not respect Spanish possessions without it.
The pope had donated half of the New World to Spain, but Charles considered that inadequate, especially when prominent Catholics like Vitoria thought the donation invalid. In any event, the gift was insufficient, as it shut Spain out of the Pacific. Besides, there was no prospect that Protestant states such as England would take the papal donation seriously.
Though both Sepúlveda and las Casas declared themselves winners of the debates, the aftermath of the Valladolid controversy was more to Sepúlveda’s liking. Spanish wars of conquest continued, as did pillage and enslavement, albeit legally (but not practically) tempered by laws proscribing inhumane treatment.
Controversy over jurisdiction and ownership continued. The advent of maritime empires raised issues over the open sea, and by extension, the rights of foreigners and foreign states in locales that were by European standards “unoccupied.”
Some jurisdictional rights on the open sea were immemorial, particularly dealing with pirates. But criminal jurisdiction over piracy did not mean that a state could claim ownership of the open sea, which could not be occupied.
The European colonization of the Americas would have transpired regardless of moral or legal rationalization. Nonetheless, the question persisted about taking possession of land ostensibly held by an indigenous population.
In the early 17th century, Dutch jurist Hugo Grotius (1583–1645) reasserted the Stoic view that Vitoria had relied upon, adding to it a doctrine promulgated by Pope Innocent IV in the mid-13th century. (Pope Innocent IV is noteworthy for issuing the papal bull in 1252 which authorized torture by the Inquisition to elicit confessions from heretics.) Through these philosophic routes Grotius concluded that ‘civilized’ peoples had natural jurisdiction over indigenous barbarians; something which Vitoria did not accept.
That withstanding, Grotius’ primary concern was with claims of dominion over the sea. Mare Liberum (The Free Sea) (1609) made the familiar argument that the open sea was a highway for all travelers, over which no state could claim dominion. Although the view is prima facie plausible, Grotius’ motive was to deny Portuguese claims in the East Indies.
The British resisted the principle of mare liberum at this time. They claimed that seas which enclosed the British Isles were theirs. The British and Dutch spent much of the 17th century fighting over the North Sea.
In the early 18th century, the marine de facto and de jure were neatly reconciled when all agreed that territorial jurisdiction went as far as a cannon ball could be fired. This became the basis for the 3-mile limit that was universally accepted until after the 2nd World War.
Conflicts arose over replacing the 3-mile limit, including the semi-comic Cod Wars (1958–1976), where Iceland wanted a 200-mile exclusive fishery zone, which Britain resisted (an inconsistency with its earlier stance as an island nation). After nearly 2 decades, Britain relented.
Treating cod as sod became the international standard. From 1958 to 1982, the United Nations Law of the Sea Conference promulgated a series of conventions, eventually acknowledging the realities of states’ economic interests in adjacent waters, with a nominal jurisdiction of 200 miles (370 km) offshore.
There is a common law among nations, which is valid alike for war and in war. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes. ~ Hugo Grotius
Grotius’ full-fledged doctrine of international law was offered in the voluminous On the Law of War and Peace (1625). Pertinent to acquiring property rights was the notion that newcomers may claim natural title by farming it.
Grotius provided the basis for Hobbes’ and Locke’s answer on this issue. Though those 2 had very different views of civil rights, they concurred in backing the claims of colonizers, and so disfavored indigenes. Both resolutely believed that stable property rights were essential to civilized life.
Swiss philosopher and legal theorist Emer de Vattel (1714–1767) laid the foundation for modern international law with The Law of Nations (1758). The influential Vattel condemned Spanish conquests in the New World, arguing that there was a genuine civilization there, pagan though it may be.
Grotius’ conclusion that conquest can be justified as punishment for violating natural law was dismissed by Vattel on the cogent ground that too many can play that game.
The prophet Muhammad conquered swaths of Asia to enforce his vision of religious rectitude. In absence of international consensus about the nature of natural law, there could be no difference between Grotius’ verdict and a general license for the mighty to conquer the meek behind a guise of high principle.
Incongruously, Vattel approved British colonization of North America, as, by his lights, there was no civilization in place. Ignorant of native food-management practices, Vattel argued that the New World savages had failed to meet their natural law obligation to make the earth productive via cultivation.
Indigenes may have possession, Vattel argued, but not ownership under natural law. Thus, they lacked the right to prevent settlement if “done within just limits.”
Vattel was a popular resource for American legal theorists. President Thomas Jefferson insisted that the natives had to choose between becoming freeholding farmers or being driven into the wilderness to starve. Indeed, Jefferson envisioned driving the natives into Canada, then seizing that country to ensure that they starved. Jefferson’s intemperate attitude was not provoked by pure racial hatred so much as his taste for revenge, owing to the success of the British in employing indigenes as auxiliaries during the Revolution and War of 1812.
Vattel’s fastidiousness undermined his arguments favoring indigenes. He was careful to distinguish between lex naturae (the law of nature) and jus gentium (customary international law). In doing so, Vattel unwittingly sharpened the distinction between urbanized states and peoples living in ‘simpler’ societies.
Naïve indigenes were not civilized, could not be relied upon to keep treaties, and so could be dealt with largely as interlopers pleased. Civilized folk were morally obliged to behave decently, but nothing more.
John Stuart Mill used that Vattelian-derived line of thought as his foundation in contrasting the freedom that civilized peoples were entitled to with the benevolent despotism suited to savages.
After Montesquieu it became a cliché that civilization developed slowly. Colonization showed that it was appallingly difficult to transplant institutions, and absurd to think alien institutions might be run as if they had organically grown.
The British experience was exemplary and provided the basis for Burke’s attack on the East India Company: that interfering with an alien society is fraught with unpredictable effect, more likely to be malign than benign.
India’s societal history stretched back to antiquity, to be sure. But unlike China, which invented civilization and bureaucracy, India had no enduring native political foundations. The 2 early indigenous empires – Maurya (322–185 bce) and Gupta (320–550) – did not establish state institutions.
After the 10th century, India’s political development was dominated by conquerors: first Muslim, then British. Both tried transplanting their own institutions onto Indian soil, and only partially succeeded.
Britain did not conquer an existing India. Rather, the British overcame independent kingdoms that became a political entity in response to their domination.
Burke’s description of behavior by the East India Company suggested that pillage on a massive scale was closer to its heart than trading. In any case, rapacity and brutality more often characterized colonization than any concern for the welfare of indigenes. If there was any ‘civilization’ imparted, it was incidental to intent.
French philosopher Denis Diderot (1713–1784) mocked the notion of any mission civilisatrice (civilizing mission). In his Supplément au voyage de Bougainville (Addendum to the Journey of Bougainville) (1796), Diderot comically rendered an encounter between a repressed Jesuit priest and the benign, sexually liberated Tahitians, raising a sharp riposte to the presumed superiority of European civilization.
Otherwise, Supplément is far from comic. It amounts to an assault of outrage against the European infection unleashed upon innocent inhabitants of distant lands who had lived perfectly happy lives until foreigners invaded.
Though progress as a good thing was typically taken for granted by Europeans on their worldwide prowl, the role that imperialism played in promoting progress was deeply contested.
Kant was a principled anti-imperialist, all the while accepting progress as precious. To Kant, a civilizing mission was the hidden purpose of history, not something that those further along imposed on those more backward.
As he often did, John Stuart Mill revealed the tensions between liberalism and utilitarian values when it came to imperialism. A liberal was likely to side with Kant and maintain that outsiders have no right to impose their ideas of civilization on those who have not asked for their help. But a utilitarian, which was Mill’s bent, should agree that a civilizing mission was a worthy effort, assuming that it was not the waste of resources that Bentham claimed it to always be.
In 1853 Mill appeared before a House of Lords committee to defend the East India Company’s governance of India. He stunned his uncomprehending audience by insisting that Britain should leave India once it had taught the Indian people the art of rational, uncorrupt government. It was clear that the lords thought about empire in traditional terms of commercial and military advantage.
Mill’s stance was unrealistically moralistic. Its mirror image was found in Marx, who clearly saw imperialists as motivated by greed: a finding back-handedly confirmed by Mill’s appearance before the House of Lords.
That truth became all the more apparent with the mid-19th-century Opium Wars, where Britain fought to ensure that they could keep profiting from poisoning the Chinese, and, by the way, take a piece of China (Hong Kong) for itself.
Britain started the wars because its trade deficit with China had been huge until it hit upon opium imports as a way to restore fiscal balance. The Chinese understandably wanted to banish opium. To the British, that spelled war.
The assumed contrast between civilized and uncivilized peoples became the commonplace cornerstone of imperialist thought in the late 19th century. Its popularity peaked with the scramble to carve up Africa, when racial ramifications were front and center. The civilizing mission of empire became, as British poet Rudyard Kipling prosaically put it in 1899, “the white man’s burden.”
If the Industrial Revolution brought the rape of Nature, the imperial thrust which stimulated its growth and provided its market meant the rape of the world. ~ Rosalind Miles
In the late 19th century, English liberal economist John Hobson, and Vladimir Lenin after him, considered imperialism an inevitable aspect of the political economics of capitalist countries, even as its consequences were predictably disastrous: immediately for the locals, and eventually for the imperialists, as governing perpetual foreigners is endlessly draining.
If violence were only a thing of the future, if exploitation and oppression never existed on Earth, perhaps displays of nonviolence might relieve conflict. But if the entire regime, even your nonviolent thoughts, is governed by a thousand-year old oppression, your passiveness serves no other purpose but to put you on the side of the oppressors. ~ Franz Fanon
In the mid-20th century, Martinique-born Afro-Caribbean psychiatrist, political philosopher, and revolutionary Franz Fanon (1925–1961) saw colonial empires as a horrific form of oppression, and considered revolt against them a decisive act of state self-formation. This was an understandable sentiment considering Fanon’s ethnic background and life experiences.
Fanon articulated that a dominant Caucasian culture took whiteness as an emblem of virtue, blackness as a badge of evil, and imposed on those born black a stigma which could never be erased. Many black Brits and Americans rightly see themselves as suffering from internal imperialism, despite the token racial equality policies the government has promulgated.
Opposition to imperialism eventually caught on. What was stranger than the rise of empire after Europeans discovered the Indies, both East and West, was the speed with which imperialism became morally tainted in the mid-20th century.
In the 1920s, with few exceptions, Brits were proud of possessing an enormous empire. But by the 1950s the pointed issue was how to bring the remaining British colonies to independence as painlessly as possible. By the end of the 20th century, empire had become a dirty word.
The 2nd World War had sapped the strength of all involved, even the United States. Colonies began to look like the endless drain that Hobson anticipated they would become.
The downfall of imperialism came partly from the fact that imperial powers imparted to their subjects a sense of nationalism, which translated to the indigenes an aspiration to cast off colonial status and have their own nation-states. As endlessly espoused by political philosophers, the feel of freedom and sense of unity have an unassailable allure.
When the 1st World War broke out, socialist parties in both Europe and the United States expected that workers would not fight workers in other countries. That feeble hope was proven wrong. Nationalism has always trumped socialism. So it was with decolonization that followed in the wake of the 2nd World War.
When colonial powers washed themselves offshore, they almost always left behind governments committed to some sort of socialism; but that inclination buckled easily, as greed and incompetence became the order of the day.
Most post-colonial governments were inept. Many turned into failed states. But they invariably set preservation of national identity ahead of any attempt at fulfilling their socialist ambitions. Filling minds was easier than filling stomachs.
In Africa, tribal loyalties, arbitrary national boundaries set by conquerors, and the absence of any sense of national unity beyond a shared memory of colonization posed an immense political quandary. The one unequivocally national institution was usually the army. This unfortunate connection led repeatedly to tyranny, typically with attendant cronyism. Meanwhile, socialism received lip service. Egypt was exemplary.
South Africa was an exception to the norm. Its capitalist instincts had been honed by coriaceous Dutch and British settlers. Further, the dark-skinned indigenes had repeatedly been uppity, and their yearnings repeatedly repressed.
Socialism was the furthest thought in mind when South Africa became independent in 1931. Instead, keeping blacks disadvantaged and at a distance was the priority.
Apartheid hung on until 1990, when native insurgency finally paid off. Following the norm, black majority rule has been abysmal. Government ineptness and corruption decayed South African society at a frightening pace. As with most former colonies, the civilizing mission failed.
