The story of the Congo Free State

by Henry Wellington Wack

The author cites in support of this, Gunther, Völkerrecht, vol. ii., p. 10 et seq. See also the beautiful and energetic passage from Heffter, Le droit international public, vol. i., par. 70, pp. 141, 142: “Droit d’Occupation.”

To give validity of occupation it is necessary that the property should be without master, and that the intention to acquire the domain should be joined to the fact of an effective taking possession. Let us examine each of the three conditions:

1. Occupation is only to be applied to property which, although susceptible of being possessed, has no master. It does not extend to persons, who can only be the object of a submission, whether voluntary or forced. Occupation is to be applied notably to countries and islands uninhabited or not entirely occupied; but no power on earth has the right to impose its laws upon wandering or even savage peoples. Its subjects can seek to establish commercial relations with these latter, can remain among them, in case of necessity can demand of them indispensable articles of provisions, and even negotiate with them the voluntary cession of a portion of the territory, with the object of colonising it. Nature, it is true, does not forbid nations to extend their empire upon the earth; but it does not give the right to a single one among them to establish its dominion anywhere wherever it chooses to do it. The propaganda of civilisation, the development of commercial and industrial interests, the putting into activity of unproductive values, do not justify it either. All that can be accorded on the subject is, that in the interest of the preservation of the human kind, it may be permitted to nations to unite in order to open by common accord the ports of a country hermetically sealed to their commerce.

See, to the same effect, Bluntschli, Droits des gens, codifié, par. 20, p. 63.

Similar citations could be multiplied.

Communities of non-civilised tribes, forming according to the law of nations, as to-day admitted, independent states, the first logical consequence which follows is that these states cannot be acquired by reason of occupation by other states. A second consequence which necessarily follows from the same premises is, that these states, or their chiefs, can make international treaties of every kind—treaties which have obligatory force for the contracting parties, and which should be respected by all other states, if they do not interfere with existing rights.

We would remark here, with Calvo,[73] that “international treaties may be concluded, even with nomadic peoples, having no territory of their own nor fixed domicile, when they have an expressed political organisation and a common council by the intermediary of their chiefs or their assemblies.” “In this category [adds the same author] may be classed the Bedouins, scattered over the deserts of Arabia, Syria, Egypt, and barbarous Africa, and the Turcomans, who wander over the plains of Central Asia.”

“There are conglomerated populations which do not compose a state.... But the nomads and the savages have, either among themselves or with civilised people, an international law which is observed equally with the international law of civilised nations,” say Funck, Brentano, and Sorel.[74]

By still stronger reasoning the tribes composing states dwelling in determined territory can make international treaties. Savage African tribes, possessing determined territories, can make all kinds of treaties. Their chiefs can therefore cede territory, in whole or in part, to whom, we will see under No. 2. This rule, or rather this consequence, cannot be impeached in theory.

“Sovereignty of a state, in the sense of international law [says Klüber, Droits des gens moderne de l’Europe, p. 22], consists essentially in independence of all foreign control in relation to the exercise of rights of sovereignty; it ought by its nature even to be exercised independently of the antiquity of the state, or the form of its constitution of government, or the order established for the succession to the throne, or the rank, title, or state of its sovereign; of the extent of its territory; of its population, political importance, manners, religion, state of culture in general, the commerce of its inhabitants,” etc.