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The Origin of the Congo Free State, Considered from the Standpoint of International Law

Published online by Cambridge University Press:  04 May 2017

Jesse S. Reeves
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Extract

The partition of Africa, which the present generation has seen accomplished, has yielded a generous by-product in international law. Protectorates, spheres of influence, hinterlands, the position of savage and semicivilized tribes, nominal and effective possession, territorial leases — these are but a few of the topics to which the political apportionment of the Dark Continent has drawn attention and exacted serious consideration. For more than twenty years the position of one of the largest holders of African territory, the Congo Free State, has aroused much discussion. With the serious accusations against Congolese administration press, pulpit, and platform have made the English-speaking peoples familiar. How far these have been proyed it is not a part of the present paper to decide. It is enough for our purpose to say that charges of maladministration have been made in the official publications of more than one country, and that protests based upon them have been presented to those responsible for the direction of the State’s affairs. No doubt the criticisms of the past few years have tended to hasten the annexation of the Congo, before which Belgium had previously faltered. Leaving aside the details of the annexation, important as they are from another point of view, the change means the substitution of a responsible government for the Congo in place of the former absolute control by a king-sovereign, who for some years had been able, thanks to the mutual jealousies of the powers, to govern as he chose, whatever might have been the limitations upon his activities which treaties had sought to impose. The coercive power of ultranational public opinion, upon which in the last analysis international law depends, has been plainly evident in the case of the Congo State. Public sentiment, transcending national boundaries, has demanded a responsible government for the Congo. It has accomplished practically all that the concerted action of the powers might have sought to do.

Type
Research Article
Information
American Journal of International Law , Volume 3 , Issue 1 , January 1909 , pp. 99 - 118
Copyright
Copyright © American Society of International Law 1909

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References

1 The texts of these treaties will be found in the Supplement to this number of the Journal, at pages 7, 27, and 70.

2 Rivier, , Les Principes du Droit des Gens, I, 57 Google Scholar.

3 This position is most strongly stated by Cattier (Droit et Administration de l’État Independant du Congo, Bruxelles, 1898), who denies that sovereignty was obtained either through recognition by the powers or through the treaties made at an earlier time with the native African chiefs (p. 43). Cf. Banning, , Le Partage Politique de l’Afrique (Bruxelles, 1898 Google Scholar). M. Bolin-Jacquemyns denied that the Congo State owed, or could owe, its existence to an assembly of diplomats, but elsewhere (Rev. de Droit Int., 1889, 170) he seems to take the opposite view. Liberia is an apparent, rather than real, exception to the doctrine stated in the text.

4 Cf. Westlake, Chapters on the Principles of International Law, IX.

5 SirMacDonnell, John, Occupation and Res Nullius, Jour. Comp. Leg. 1893, 277–288 Google Scholar.

6 Keltie, , The Partition of Africa (1st ed.), 119 Google Scholar.

7 Banning, E., Africa and the Brussels Conference, London, 1877, 155 Google Scholar.

8 It is true that the Comité d’Études was organized as a “société en participation” November 28, 1878, with a capital of one million francs. This sum was soon exhausted in the prosecution of the Stanley expedition, and thereafter the necessary funds were supplied by Leopold. The first appearance of the International Association of the Congo is variously stated. Wauters (L’État Indépendant du Congo, 23) says that the comité changed its name at the end of 1883; Chapeaux (Le Congo, 322), that the comité “took the title” of International Association of the Congo in 1882, as does Vermeersch (La Question Congolaise, 12). Boulger (The Congo State, 26) gives no date, but states that the comité “soon” changed its came. Cattier (op. cit., 19), on the other hand, definitely states that the comité ceased to exist during Stanley’s expedition. Leopold’s motives for assuming a new name for his work Cattier conjectures to have been based upon the apparent utility “of introducing the word international” and of renewing the appearance of internationality with which the earlier African association had been invested. As late as 1884 treaties with the chiefs were still being made in the name of the old International African Association. “Au fond, le nom ne faisait rien. Il désignait toujours le même pensée, le même volunté creatrice (Vermeersch, op. cit., 12.)” But when the will became political, the adjective “international” was reassumed. The Belgian Constitution then barred the way to accession of territory.

9 The Congo and the Founding of its Free State,

10 Cf. the treaty between the British South African Company and Umtassa, September 14, 1890, quoted by Westlake, op. cit.. 151.

11 Article 68 of the Constitution, as revised in 1893, reads: “The colonies, foreign possessions, or protectorates, such as may be acquired by Belgium, are to be ruled by special laws. Belgian troops for the defense of these can only be recruited by voluntary enlistment.” Bull, de la Soc. de Leg. Comp., 1893, 611.

12 Notably, Twiss and Arntz in Rev. de Droit Int., 1883-4.

13 Phillimore, , International Law, 3d ed., I, 81 Google Scholar.

14 Naturalization in the Congo Free State was established in 1892 by a decree of Leopold of December 27 of that year. Lycops, Les Codes Congolais, 161.

15 Savigny, , Traité du Droit Romain, II, 237 Google Scholar. Cf. Cuq, , Les Institutions juridiques des Romains, II, 794 Google Scholar.

16 Note the apparent exception of the Comité d’Etudes described above.

17 Rev. de Droit Int., 1889, p. 170.

18 Keltie, , The Partition of Africa, 1st ed., 143 Google Scholar, who quotes an unnamed source for the statement.

19 Boulger, The Congo State, 42.

20 Cattier, op. cit., 25, makes the unsupported assertion that Holland and the United States also protested.

21 Van Ortroy, Conventions internationales concernant l’Afrique, 98. See also Supplement to this Journal. This right of preference in favor of France gave rise to many complications. France announced her right by a circular to the powers (April 23-24, 1884), and, so far as known, none protested. The Congo Association ratified the right after its full recognition by France (February 5, 1885). As no exception was made it was feared that France would oppose its right as against Belgium in case the latter State desired to annex the Congo. The question was left open by an interchange of notes between France and the Congo in 1887. By the Franco-Belgian treaty of 1895 the right was confirmed. Although annexation did not then take place, the treaty served to interpret the right: that it would not take priority over Belgium, but that as to other powers both the Congo and Belgium admitted its force.

22 Wauters, L’État Independant du Congo, 30.

23 And to check English influence over Portuguese Africa.

24 Keltie, , The Partition of Africa, 1st ed., 207 Google Scholar. The General Act of Berlin, signed by the American delegates, was not submitted to the Senate for ratification by President Cleveland.

25 Faust, II, Act II.

26 Stanley, , The Congo, II, 394 Google Scholar.

27 Art. 62. The King can not be at the same time chief of another state without the consent of the two Chambers. Neither Chamber can deliberate upon this question unless two-thirds of its members are present, and the resolution shall not be adopted except by a two-thirds vote of each House.