The story of the Congo Free State

by Henry Wellington Wack

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]