'Right' of Civilisation (28 P.)

Journal of the History of International Law 15 (2013) 25–52
JHIL
brill.com/jhil
The So-Called Right of Civilisation in European Colonial

Ideology, 16th to 20th Centuries
Jo-Anne Claire Pemberton

University of New South Wales, Sydney, Australia
Introduction
Over the course of the nineteenth century a distinctive set of legal criticisms
concerning the colonial domination of overseas peoples emerged in conti-
nental Europe, drawing inspiration from natural law thinking, the moral
philosophy of Kant and notions of scientifĳic reason. As the century pro-
gressed, arguments condemning either the manner of European colonisa-
tion or the practice of colonialism itself widened in scope and sharpened
in tone. Indeed, in the latter years of the nineteenth century some critics
of the practice of colonialism became quite explicit in their expressions of
contempt for the main pillar of its defence: the right of civilisation. Com-
mentators questioned the legal status of this alleged right, variously dismiss-
ing it as mere pretext for spoliation, a product of cultural blindness and a
sign of intellectual confusion. Nor were critics unaware of the dangers posed
by the assertion of such a right to the sanctity of borders in Europe.
Drawing on a range of British and European commentaries, this article
examines the development of the idea of the right of civilisation (droit de
civilisation) during the age of imperialism. Most importantly, it examines
the various responses to past assertions of such a right, drawing mainly on
nineteenth century legal materials. The focal point of the controversy con-
cerns the fact that the efffect of the assertion of this right was to render as
terra nullius not simply land that was in William Blackstone’s strict defĳini-
tion of the term “desert” and “uninhabited”, but also land which was “inhab-
ited by uncivilized or disorganized groups”.1 Blackstone himself expressed
1) Gerry Simpson, “Mabo, International Law, Terra Nullius and the Stories of Settlement:
© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15718050-12340002
26 Pemberton / Journal of the History of International Law 15 (2013) 25–52
serious misgivings about the practice of settling lands which were inhab-
ited by groups described as such, stating in regard to it:
. . . so long as it was confĳined to the stocking and cultivation of desert and

uninhabited countries, it kept strictly within the limits of the law of nature.
But how far the seizing on countries already peopled, and driving out or mas-
sacring the innocent and defenceless natives, merely because they difffered
from their invaders in language, in religion, in customs, in government, or in
colour; how far such a conduct was consonant to nature, to reason, or to Chris-
tianity, deserved well to be considered by those who have rendered their
names immortal by thus civilizing mankind.2
Critics of the asserted right of civilisation pointed to the ambiguous nature

of the arguments in support of it and sought to unravel them from within
by showing how the interpretation of some of their conceptual elements
signifĳicantly undermined their very force. This is also suggestive of the fact
that the writings of those generally seen as partisans of such a right were
not without their nuances. Not all of the legal critiques of colonialist doc-
trine examined herein are cast in the same mould. While some critics of
imperial annexation allowed that lands which were otherwise inhabited
could be regarded as territoria nullius under certain conditions, there were
others who went as far as to insist on the inviolability of the territory of all
human societies.
Civilisation: Vitoria, Grotius and Vattel

In seeking to moderate the treatment of the Amerindians in Spain’s New
World possessions, Francisco de Vitoria famously pronounced in De Indis
that these conquered peoples “undoubtedly possessed true dominion, both
public and private, as any Christian”, adding that they “could not be robbed
of their property, either as private citizens or as princes, on the grounds
An Unresolved Jurisprudence”, Melbourne University Law Review, Vol. 19, No. 1 ( June 1993),
pp. 195–210, p. 203.
2) Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected
from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron
Field’s Analysis, and Additional Notes, and a Life of the Author, by George Sharswood. In two
volumes (Philadelphia: J.B. Lippincott Co., 1893), Vol. 1, Bk.II, Ch.I, p. 396.
Pemberton / Journal of the History of International Law 15 (2013) 25–52 27
that they were not true masters”.3 Yet while denying the right of the Span-
ish Crown to claim title over the New World (based on the Crown’s claim to
mastery of the entire world, papal authority, the Amerindians’ rejection of
the Christian faith or their commitment of heinous sins), Vitoria also speci-
fĳied the just causes for waging war against the Amerindians. Just causes for
war included Amerindian violations of the principle of hospitality through
preventing the Spanish from exercising their natural right of circulation
and commercial exchange, or where the Amerindians forcibly prevented
the Spanish from spreading the true religion. In addition, Vitoria suggested
that were the Amerindians in fact incapable of self-government due to their
“mental incapacity”, then Spanish rule over them would be “lawful”. How-
ever, Vitoria added that subjection of “the barbarians” on this basis was
subject to the “limitation” that “everything is done for the benefĳit and good
of the barbarians, and not merely for the profĳit of the Spaniards”.4
Concerning this last “possible title”, Vitoria stated that it was “mentioned
for the sake of argument” since it could not be asserted “with confĳidence”
that the barbarians were “in fact all mad”. Indeed, in asserting that the
Amerindians possessed true dominion, Vitoria denied that they were mad:
he claimed that they exercised reason, citing as evidence the fact that they
had “some order . . . in their afffairs”.5
Vitoria’s contemporary Bartolomé de Las Casas, commenting on Vito-
ria’s defence of the Amerindians, stated that when discussing the possible
titles by which the Amerindians “could come under the jurisdiction of the
Spaniards”, Vitoria mostly assumed that “certain reasons for judging this
war to be just are very false” and that these false reasons had been “appealed
to by . . . plunderers”. However, Las Casas went on to state that at certain
points in his discussion Vitoria had been somewhat “careless” and that this
was because he wanted to “moderate what seemed to the Emperor’s party
to have been rather harshly put”. That Vitoria’s attempts at moderation
were strategic rather than a sign of ambivalence on Vitoria’s part Las Casas
suggested, was shown by the fact that they were expressed “hesitantly” and
“conditionally”.6
3) Francisco de Vitoria, “On the American Indians (De Indis)” in Anthony Pagden and Jeremy
Lawrance eds., Francisco de Vitoria: Political Writings (Cambridge: Cambridge University
Press, 1991), Question 1, Concl., §23, pp. 250–251.
4) Ibid., Question 3, Article 8, §18, pp. 290–291.
5) Ibid., Question 1, Article 6, §23, p. 250 and Question 3, Article 8, §18, pp. 290–291.
6) Bartolomé de Las Casas, In Defense of the Indians: The Defence of the Most Reverend Lord,
Don Fray Bartolomé de Las Casas, of the Order of Preachers Late Bishop of Chiapa, Against
Some have argued that Vitoria’s discussion of the possible titles by

which the Amerindians might have come under Spanish jurisdiction fore-
shadows the supposed right of civilisation. For example, Peter Fitzpatrick
argues that while the incorporation of the Amerindians into the jus gen-
tium meant that they could be regarded as being in possession of certain
natural rights, this did not mean that they and their rulers were to be seen
as the equals of their Christian counterparts. Fitzpatrick maintains that the
relegation of the Amerindians to an inferior position under the jus gentium
was inevitable given the theological assumptions that underpinned this
notion: the reasons prompting Vitoria to allow that Spain might justly claim
title to the New World were not simply political but were also doctrinal.
According to Fitzpatrick, the Thomistic cast of Vitoria’s thought caused
him to see natural law principles such as the attribution of “dominium . . . to
all ‘men’”, as being conditioned by insights “more intimate to the divinity”
this being the realm, from Vitoria’s perspective, from which natural law
issues.7 The contention here is that under such a conceptual regime, non-
Christians were inevitably going to be treated in a discriminatory manner:
placed in a subordinate position in relation to a universalising Christianity.8
As Arthur Nussbaum drily notes, “[a]dmission of non-Christian missionar-
ies in Spain was, of course, unthinkable”.9
These reservations aside, what can be afffĳirmed is that Vitoria’s reflec-
tions show that it was possible for a sixteenth century European to con-
ceive of non-European societies as independent political and legal orders
even where such societies seemed strange to European eyes. As Marc Pauka
maintains, Vitoria “acknowledged the legal subjectivity” of the Amerindi-
the Persecutors and Slanderers of the Peoples of the New World Discovered Across the Seas (De
Kalb: Northern Illinois University Press, 1974), pp. 340–341. See also Greg Marks, “Sovereign
States vs Peoples: Indigenous Rights and the Origins of International Law”, Australian
Indigenous Reporter, Vol. 5, No. 2 (2000), accessed from <http://www.austlii.edu.au/au/
journals/AILR/2000/14.html> on 2011-11-08.
7) Peter Fitzpatrick, “ ‘Terminal Legality’: Imperialism and the (De)composition of Legal
Culture” in Diane Kirby and Catharine Coleborne, Law, History, Colonialism: The Reach of
Empire (Manchester: Manchester University Press, 2001), p. 10. See also Charles Salomon,
De l’occupation des territories sans maître: Étude de Droit international (Paris: A. Giard, 1889),
Pt.III, Section III, Ch.I, §77, pp. 194–195. Salomon pointed out that people were “already
speaking of the right of civilisation” and subjecting the notion to ridicule in the late 16th
century.
8) Ibid., p. 11.
9) Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1954),
p. 82.
ans “by declaring that jus ad bellum and the jus in bello applicable” to them
and this was irrespective of their beliefs and alleged sins against nature.10
Hugo Grotius in his Mare liberum (Freedom of the Seas) upheld a similar
position, according “infĳidels” rights of sovereignty and arguing, drawing on
Vitoria, that it would be “heresy” to maintain that they were not “masters of
their own property” on account of their beliefs. In respect to the East Indi-
ans, Grotius insisted that it would be an “injustice” to cite character as
grounds for subduing them, especially given as Vitoria had indicated, they
were not “stupid and unthinking . . . [but] . . . intelligent and shrewd”.11
Grotius’s defence of the rights of overseas peoples difffers somewhat from
that of Vitoria. Although he concluded with Vitoria that the Spanish had
“no more legal right over the East Indians because of their religion, than the
East Indians would have had over the Spaniards if they happened to be the
fĳirst foreigners to come to Spain”, his reasoning in this regard was secular.
Grotius argued that the idea that a people might be deprived of their inde-
pendence and “sovereignty over their possessions” on religious grounds
had no place in the law of nations. This was precisely because “sovereignty
is a matter of positive law, and unbelief a matter of divine law” and the lat-
ter “cannot annul” the former.12 In clearly distinguishing between the
claims of the law of nations and the claims of divine law, Grotius was able
to view relations between European and overseas peoples in arguably more
egalitarian terms at least in regard to the question of religious belief.
Yet outside of the context Mare liberum, a nascent right of civilisation
may be discerned in Grotius’s thinking. Noting that on this particular topic
a “contrary view” was held by Vitoria, Grotius stated in De Jure Belli ac Pacis
10) Pauka points out that studies have shown that the “hypothesis in modern literature” that
Vitoria “had established the normative ideal of civilisation within international law . . . is
incorrect”. Marc Pauka, Kultur, Fortschritt und Reziprozität: Die Begriffsgeschichte des zivili-
sierten Staates im Völkerrecht (Baden-Baden: Nomos, 2012), p. 251. For a nuanced assessment
of Vitoria and some of the other authors examined herein see Georg Cavallar, “Vitoria,
Grotius, Pufendorf, Wolfff and Vattel: Accomplices of European Colonial Exploitation or
True Cosmopolitans?”, Journal of the History of International Law, Vol. 10 (2008), pp. 181–
209, pp. 182–3 On the question of the Amerindians sins against nature see Vitoria, “On the
American Indians”, Question 2, Article 5, §39, pp. 272–274.
11) Hugo Grotius, The Freedom of the Seas: Or the Right which belongs to the Dutch to take
part in the East Indian Trade [1608] Trans. Ralph Van Deman Magofffĳin (New York: Oxford
University Press, 1916), Ch.II, pp. 13–14.
12) Hugo Grotius, The Freedom of the Seas: Or the Right which belongs to the Dutch to take
part in the East Indian Trade [1608] Trans. Ralph Van Deman Magofffĳin (New York: Oxford
University Press, 1916), Ch.II, pp. 13–14.
that foreign rulers have a right to punish those who gravely “sin against
nature”; for Grotius, war against such sinners was no less just than a war
against “savage beasts”.13 Importantly, because this right of punishment is
based in natural law which Grotius stated would exist whether God existed
or not, Christians and non-Christians alike may in principle exercise it.
Thus, Grotius applauded the Incas for compelling “neighbouring peoples”
who had ignored “a warning to abstain from incest, from the intercourse of
male persons, [and] from the eating of human flesh”, adding that it was by
such means that they had “won for themselves an empire”, one which was
the “most just of all . . . except in its religion”.14
Grotius well understood that the right of punishment that he articulated
would be abused by the ambitious and covetous. Citing Plutarch’s observa-
tion that the expressed desire “to impose civilization upon the uncivilized
is a pretext which may serve to conceal greed for what is another’s”, he
specifĳied that the “law of nature must be distinguished from widely current
national customs”.15 Yet, whatever practical dangers were posed by the
right of punishment he advanced, Grotius remained unrelenting in his sup-
port for the principle, correctly insisting that a “right does not at once cease
to exist in case it is to some extent abused by evil men.”16
Grotius also touched on a thesis that later publicists would develop in
stating that “if within the territory of a people there is any deserted and
unproductive soil” it should be accorded to foreigners if they request it. Fur-
ther to this, he argued that foreigners would be “right” in occupying land
that is not cultivated since “uncultivated land ought not to be considered as
occupied”.17 However, Grotius qualifĳied this point, adding that such a legal
right of occupation does not impair the sovereignty of the “original people”.18
As Jean Barbeyrac noted in his 1724 commentary on the Law of War and
13) Hugo Grotius, De Jure Belli Ac Pacis: Libri tres Vol. II (Oxford: Clarendon, 1925), Bk.II,
Ch.XX, Pt.XL, §50, p. 506.
14) Ibid., Bk.II, Ch.XX, pt.XL, §50, p. 506n.
15) Ibid., Bk.II, Ch.XX, pt. XLI, p. 507 and Grotius, The Freedom of the Seas, Ch.II, p. 14. “Plu-
tarch said long ago that the civilizing of barbarians had been made the pretext for aggres-
sion, which is to say that a greedy longing for the property of another often hides itself
behind such a pretext. And now that well-known pretext of forcing nations into a higher
state of civilization against their will . . . is considered by all theologians, especially those of
Spain, to be unjust and unholy.”
16) Grotius, De Jure Belli Ac Pacis, Bk.II, Ch.XXV, Pt.VIII, §4, p. 584.
17) Ibid., Bk.II, Ch.II, Pt.XVII, p. 202.
18) Ibid.
Peace, Grotius’s argument in this context relies on a distinction between

the right of imperium and the right of dominium. It is a distinction that Bar-
beyrac regarded as unsound and inconsistent with some of Grotius’s other
pronouncements:
All the Land within the Compass of each respective Country is really occu-
pied; tho’ every Part of it is not cultivated, or assigned to any one in particular:
It all belongs to the Body of the People. The Author [Grotius] here reasons on
a false Idea of the Nature of taking Possession. He has himself owned, that not
only the Rivers, Lakes, Ponds, and Forests, but also the rough and uncultivated
Mountains (Montes asperi) belong (manent in Dominio) to that People, or
King, who has fĳirst taken Possession of the Country. He does not there distin-
guish Jurisdiction from Property; and that Distinction is equally ill grounded in
this Case, and liable to great Inconveniences. The Inundations of so many bar-
barous People, who under Pretence of seeking a Settlement in uncultivated
Countries, have driven out the native inhabitants, or seized on the Govern-
ment, are a good Proof of what I advance.19
This distinction between jurisdictional and property rights would reappear

in the work of Emer de Vattel, with Vattel later being credited with expand-
ing the notion of territoria nullius. James Mayall writes that with Vattel this
notion became applicable to territories inhabited by “predatory peoples,
hunting and gathering tribes and nomadic herdsmen who were a danger to
their neighbours” as well as those who pursued an “ ‘idle mode of life’ and
occupied ‘more land than they would need under an honest system of
labour’ ”.20 Vattel certainly argues that those who disdain to cultivate their
lands and instead live “by plunder” should be “extirpated as savage and per-
nicious beasts”. Beyond this however, it is more than arguable that Vattel
did not expand the concept of terra nullius to the degree that some have
suggested.21
19) Hugo Grotius, The Rights of War and Peace, edited by Richard Tuck from the edition by
Jean Barbeyrac (Indianapolis: Liberty Fund, 2005), Bk.II, Chap.II, Pt.XVII, n.1, accessed from
<http://oll.libertyfund.org/title/1947/121292/2448444> on 2009-11-23.
20) James Mayall, ‘International Society and International Theory’ in Michael Donelan ed.,
The Reason of States: A Study in International Relations Theory (London: George Allen &
Unwin, 1978), p. 128.
21) Emer de Vattel, The Law of Nations; or Principles of the Law of Nature Applied to the
Conduct and Affairs of Nations and Sovereigns (Philadelphia: T. & J.W. Johnson, 1863), Bk.I,
Ch.I, §81, pp. 35–36.
Vattel regarded as “notorious usurpation” the Spanish conquest of the

“civilized empires” of Mexico and Peru and the subjection of the Amerindi-
ans to Spain’s “greedy dominion” under the pretence of civilising them and
instructing them in the “true religion”.22 It was a violation of “all rules”,
Vattel wrote, for the Spanish to assume the role of judges in relation to the
laws and customs of the Amerindians, “things” for which the Amerindians
were “not at all accountable” to the Spanish, whether under the law of
nations or the laws of Spain.23 Vattel’s argument is reminiscent of the argu-
ment that Grotius advanced in relation to the same topic, however Vattel
went much further than Grotius in rejecting almost completely the idea
that rulers have a right to “chastise nations which are guilty of enormous
transgressions of the law of nature”.24
In this matter, Vattel’s contemporary Christian Wolfff influenced him.
Wolfff rejected the view (which he ascribed to Grotius), that “[b]arbarism
and uncultivated manners” are a just pretext for waging war against both
nations and separate families. While Wolfff conceded that the latter lived
without “civil sovereignty” and implied that their welfare might be improved
through subjection to a civil authority, he maintained that this did not jus-
tify any denial of the “liberty . . . [of ] . . . those who are unwilling”.25 For
Wolfff a nation, “properly speaking”, is a group of individuals subject to a
civil sovereignty, yet the absence of civil sovereignty does not mean that
separate families do not own their lands. They do so, according to Wolfff, in
the form of a “mixed community-holding”; even if these separate families
wander “hither and thither” this does not impair their continuing owner-
ship of the lands they intend to use “only in alternation”. In fact, Wolfff
thought that an investigation into “the reason” which impels such families
“to wander through uncultivated places” would only demonstrate why pos-
session of lands not permanently in use is necessary.26
Vattel maintained that it is the earth’s destiny to provide nourishment
for its inhabitants and that, in light of this, there is a corresponding “obliga-
tion imposed by nature on mankind” to cultivate the earth.27 Vattel thus
22) Ibid., Bk.I, Ch.I, §81, p. 36 and Bk.II, Ch.I, §7, p. 137.
23) Ibid., Bk.II, Ch.IV, §56, p. 155.
24) Ibid., Bk.II, Ch.I, §7, p. 137. One reason Vattel gave for his rejection of Grotius’s position
here is that it would “furnish ambition with numberless pretexts”.
25) Christian von Wolfff, Jus Gentium Methodo Scientifĳica Pertractatum (Oxford, Clarendon
Press, Oxford, 1934), Vol. II, Ch.II §169, p. 89 and Ch.III §313 pp. 159–160.
26) Ibid., Ch.III, §312, p. 159.
27) Vattel, The Law of Nations, Bk.I, Ch.VII, §81, p. 35.
argued that it is illegitimate for a nation to extend itself across a dispropor-

tionate amount of territory, thereby reducing other nations to “want subsis-
tence” or denying them a “place of abode”.28 It followed then that the
“erratic nations” of North America had no “right to appropriate all that vast
continent to themselves”, a continent through which, Vattel stated, they
“ranged” rather than “inhabited”.29 In addition, Vattel argued that if Euro-
pean peoples “too closely pent up at home” came across “land of which the
savages stood in no particular need, and of which they made no actual and
constant use”, they were “lawfully entitled to take possession of it, and
settle it with colonies.”30
For Vattel, although peoples who do not form a “political society”, such
as families living independently of each other be they sedentary or “wan-
dering”, do not possess sovereignty they do possess “free domain”.31 Mark
Frank Lindley later reasoned in relation to this that Vattel accorded inde-
pendent families mere property rights and that in respect to sovereignty
their “country would be territorium nullius”.32 It is true that Vattel states
that independent families are, due to their lack of political organisation,
without sovereignty (sans Empire). Yet as Lindley concedes, Vattel also
argues that while one may occupy land surplus to the needs of such families
(whom Vattel refers to as being “settled” in a country), no-one is entitled to
“seize the empire” (Empire) of the country because “no man has a right to
command men who are born free, unless they voluntarily submit to him”.33
One might interpret Vattel as saying that while families living indepen-
dently of each other cannot be said to be internally organised along sover-
eign lines, this does not mean that they lack a right of independence and, in
a somewhat obscure sense, territorial integrity. That is, although lacking
28) Ibid., Bk.II, Ch.VII, §86, p. 167.

29) Ibid., Bk.I, Ch.VII, §81, p. 36, Bk.I, Ch.XVIII, §209, p. 99, Bk.II, Ch.VII, §97, p. 171.
30) Ibid., Bk.I Ch.XVIII, §209, p. 99 and Bk.II, Ch.VII, §97, p. 171.
31) Ibid., Bk.I, Ch.VII, §97, pp. 170–171.
32) M. F. Lindley, The Acquisition and Government of Backward Territory in International Law:
Being a Treatise on the Law and Practice of Colonial Expansion (London: Longmans Green,
1926), p. 23.
33) Vattel, Law of Nations, Bk.II, Ch.VII, §97, pp. 170–171 and Emer de Vattel, Le Droit des
gens, ou Principes de la loi naturelle, appliqués à la conduite & aux affaires des Nations &
des Souverains, Tome I (Londres, 1758), Bk.II, Ch.VII, §97. Accessed from <http://www
.larecherchedubonheur.com/article-28503385.html> on 2012-07-15. Lindley claims, how-
ever, that Vattel’s qualifĳication “apparently” only refers to “the case in which the families
in question are properly cultivating the soil”. Lindley, The Acquisition and Government of
Backward Territory in International Law, p. 23.
internal sovereignty, there is a sense in which such families possess sover-

eignty in its external form.
Clearly however, Vattel sees the territorial claims of independent fami-
lies as being weaker than those of politically organised societies. There does
not appear to be any suggestion that a right of occupation is admissible in
relation to the territories inhabited by politically organised societies even
if parts of their territory have the appearance of being surplus to their
requirements.34 Further, it was highly optimistic to think that those seizing
a part of a territory occupied by independent families might confĳine them-
selves to land surplus to native requirements. It is also to be expected that
Vattel’s understanding of what rendered land surplus to requirements was
informed by European understandings of occupation, habitation and use.35
Yet it would incorrect to insist that Vattel failed to appreciate the existence
of land use and cultivation practices diffferent from those employed in
Europe. At one point, he suggests that the “pastoral Arabs” might need less
land were they to “carefully” cultivate the soil. However, Vattel then goes on
to note that the pastoral Arabs “possess their country . . . make use of it after
their manner . . . [and] . . . reap from it an advantage suitable to their man-
ner of life” and it is for this reason that “no other nation has a right to nar-
row their boundaries, unless she be under an absolute want of land”.36
Based on the foregoing, one might argue that while Vattel expanded the
meaning of territorium nullius the extent to which he did so is not entirely
clear. Charles Salomon later insisted that Vattel’s “hypothesis of a right of
necessity” was entirely “gratuitous” as the conditions that Vattel supposed
had never existed: a “well cultivated earth” Salomon insisted, provided for
all its inhabitants. More importantly in this context, Salomon maintained
that Vattel’s argument was contradictory: the implications he drew from
the asserted obligation to cultivate the earth stood in contradiction to his
otherwise insistence that pastoral and wandering families possess their
34) Vattel, Law of Nations, Bk.II, Ch.VII, §97, p. 171. Vattel argues that settlement of parts of
North America by other nations could be undertaken “without injustice . . . provided they
left the natives a sufffĳiciency of land”.
35) Paul Keal, European Conquest and the Rights of Indigenous Peoples: The Moral
Backwardness of International Society (Cambridge: Cambridge University Press, 2003),
pp. 100–102.
36) Vattel, Law of Nations, Bk.II, Ch.VII, §97, p. 171.
country to the exclusion of all others.37 Salomon would thus seem to agree
that Vattel does not provide explicit justifĳication for the forced appropria-
tion of lands inhabited by politically unorganised societies let alone their
colonial domination.38 As Gaston Jèz pointed out, Vattel admitted of a
“right of civilised nations only in the case of absolute necessity” and then
only if the country is “vast” and the indigenous inhabitants are sparse in
number such that there is more land available than of which the latter has
need.39 It would be publicists following in Vattel’s wake who would explic-
itly deny tribal societies, in particular non-sedentary societies, independent
status because they were not sovereign states.40
John Austin: Political Societies and Natural Societies

From the mid-eighteenth century onwards, the understanding that sover-
eignty ultimately is vested in the impersonal institution of the state (as pre-
saged by Jean Bodin and Thomas Hobbes), rather than in a royal person
spread and deepened.41 This conceptual development coupled with the
positivist identifĳication of law with the presence of physical sanctions,
arguably encouraged the view that communities in which institutions of
government are not distinct from the community and in which law-abiding
behaviour largely rests on the internalisation of community norms should
not be regarded as sovereign.42
Not surprisingly, the legal positivist John Austin was among those who
discounted the sovereignty of what he considered to be politically disor-
ganised societies, referring to these as natural societies and contrasting
them with what he called independent political societies. For Austin, the
37) Salomon, De l’occupation des territories sans maître, Pt.III, Section III, Ch.II, §79,
pp. 202–4. See also S. James Anaya, Indigenous Peoples in International Law (New York:
Oxford University Press, 1996), p. 16.
38) On this point see also Henry Reynolds, Aboriginal Sovereignty (St. Leonards, Allen &
Unwin, 1996), p. 53.
39) Gaston Jèze, Étude théorique et pratique sur l’occupation comme mode d’acquérir les
territoirs en Droit international (Paris: V. Giard & Brière, 1896), Bk.II, Ch.I, Section I:A, p. 111.
40) Anaya, Indigenous Peoples in International Law, pp. 16fff.
41) F. H. Hinsley, Sovereignty (London: C.A. Watts & Co. Ltd, 1986), p. 130.
42) Ibid., pp. 15–17.
positive mark of sovereignty is that the “bulk of the given society is in a

habit of obedience or submission to a determinate and common superior”.43
While certainly displaying the negative mark of sovereignty, that is, inde-
pendence, natural societies in Austin’s account lack its positive mark. While
members of such societies are “connected by mutual intercourse” they are
not in a “state of subjection”: the “generality or bulk” of their “members . . .
[are] . . . not in a habit of obedience to one and the same superior” and for
this reason such societies cannot be conceptualised in terms of the princi-
ple of sovereignty. Echoing John Locke, Austin maintained that natural
societies enter into a state of submission to “one leader, or to one body of
leaders”, only in order to attack or repel an “external enemy”; once the
emergency has passed, this military machine dissolves and society reverts
to its “ordinary” or segmentary condition.44 By contrast, while independent
political societies like natural societies do not form part of a wider constitu-
tional order, unlike natural societies they can be viewed as sovereign: their
members are in a state of subjection.45
For Austin, since independent natural societies are not in a state of sub-
jection they do not possess, properly speaking, a system of laws. Austin fol-
lowed Bodin in conceiving of sovereignty as the freedom to make and
unmake the law and Hobbes in insisting that law properly so-called must
be accompanied by a power of sanction. Austin was not denying that inde-
pendent natural societies are rule-governed or indeed that the behaviour of
their members might be even more tightly constrained through the com-
pelling power of custom than is the behaviour of members of independent
political societies. However, the crucial matter for Austin is the fact that
natural societies are governed by the self-enforcing laws of the community
rather than the enforceable commands of a superior who can change the
law at will. He stated that the “so-called” laws “which are common to the
43) John Austin, “Jurisprudence” in William Jethro Brown, The Austinian Theory of Law:
Being an Edition of Lectures I,V, and VI of Austin’s “Jurisprudence,” and of Austin’s “Essay on
the Uses and of the Study of Jurisprudence” with Critical Notes and Excursus (London: John
Murray, 1906), Ch.III, §220, pp. 96–97.
44) Ibid., Ch.III, §235 and 256, pp. 101 and 108. Locke stated in regard to American Indian
chiefs that they are “. . . little more than Generals of their Armies; and though they command
absolutely in War, yet at home and in time of Peace they exercise very little Dominion, and
have but very moderate Sovereignty, the Resolutions of Peace and War, being ordinarily
either in the People, or in a Council.” John Locke, Two Treatises of Government (Cambridge:
Cambridge University Press, 1967), pp. 357–358.
45) John Austin, ‘Jurisprudence’, Ch.III, §235, p. 97.
bulk of the community” living in a state of nature “are purely and properly
customary laws: that is to say, laws which are set or imposed by the general
opinion of the community, but which are not enforced by legal or political
sanctions”.46
Lindley later challenged Austin’s way of framing the issue, arguing that it
is possible for sovereignty to “reside in the community as a whole” rather
than in a determinate and common superior equipped with the power of
sanction.47 He argued persuasively that a community does not need to pos-
sess the complex institutional arrangements of the modern state, or even
the concept of sovereignty itself, for sovereign status to be ascribed to it: all
that is required is recognition of the actual powers that a particular com-
munity exercises, powers which its members doubtless understand. It does
not matter, Lindley asserted, whether a community conforms to law
through fear of punishment, by “force of custom or from fear of supernatu-
ral consequences”: as long as a community displays a law-abiding attitude,
then it can be viewed as a political society.48
Austin himself opened the way to the recognition of the sovereignty of
stateless societies, stating that should the members of a so-called natural
society render “habitual obedience” to their “own peculiar chief ” they
might be seen as “congeries of independent political communities however
small”.49 Lindley’s argument fĳinds further support in Austin if we consider
the latter’s admission that as a jurist he did not feel the need to investigate
the actual basis of a community’s habitual obedience to commands: Austin
was content to merely note its outward manifestation.50
John Westlake: Property but not Sovereignty

While Austin’s focus was on the question of political organisation and the
evidence of such organisation, later publicists tended to view the question
of political organisation as a subset of the question of civilisation or to sim-
ply confound the two issues. Thus, for John Westlake the relevant criterion
46) Ibid., Ch.III, §256 pp. 108–109.

47) Lindley, The Acquisition and Government of Backward Territory in International Law,
p. 21.
48) Ibid., pp. 21–22.
49) Austin, “Jurisprudence”, Ch.III, §257–258, pp. 109–110. Austin, however, then adds the
qualifĳication than an independent political society “must not fall short of a number which
may be called considerable”.
50) Ibid., Ch.VI, §381, note, p. 205.
when determining whether indigenous sovereignty exists is not merely the

presence or absence of government, but the presence or absence of a gov-
ernment under which Europeans can live commodiously:
When people of the European race encountered American or African tribes,

the prime necessity is a government under the protection of which the former
may carry on the complex life to which they have been accustomed in their
homes . . . Can the natives furnish such a government, or can it be looked for
from the Europeans alone? In the answer to that question lies, for interna-
tional law, the diffference between civilisation and want of it.51
For Westlake the sovereign status of non-European peoples would appear

to be very much a constitutive matter: its existence largely hinges on deter-
minations made by already established states. Thus, if tribal peoples are
incapable of ceding sovereignty in Westlake’s view, it is precisely because
sovereignty can “only belong to ‘a native government capable of controlling
white men or under which white civilization can exist’ ”.52 Westlake
applauded as “sound doctrine” the statement by his Portuguese contempo-
rary Martens Ferrão to the efffect that
international title to territory cannot be based on ‘cessions made by native

chiefs, half or wholly savage, to the chance comer who gives them the most’,
because they do not themselves ‘possess any constituted sovereignty, that
being a political right derived from civilisation.53
This last observation might seem to contradict Westlake’s assertion, in

lamenting the fact that “too often force is the fĳirst means employed against
the indigenous population”, that it is “always desirable and generally pos-
sible” for governments to establish colonial protectorates through agreements
with “native chiefs” rather than by coercion. However, Westlake added that
such agreements should be confĳined to those things, which the “native
intelligence” is able to comprehend and this certainly did not include, in his
view, questions concerning the organisation and administration of the
51) Quoted in Anaya, Indigenous Peoples in International Law, p. 20.

52) Quoted in Simpson, “Mabo, International Law, Terra Nullius and the Stories of
Settlement”, note, p. 201.
53) Quoted in John Westlake, International Law, Part 1: Peace (Cambridge: Cambridge
University Press, 1910), p. 141.
state.54 What this intelligence can comprehend, according to Westlake, is

property such that “at the moment when white sovereignty is acquired
property may be held by natives or by whites to whom they have trans-
ferred it with full knowledge of what they were doing”.55
This view was not especially remarkable at the time: whatever divisions
existed in regard to a right of civilisation, authors generally agreed that
indigenous peoples are capable of exercising property rights.56 Citing
Grotius, Westlake distinguished between property rights and the right of
sovereignty, insisting like many others that the continuation of native
title is completely consistent with the establishment of European sover-
eignty over a particular territory.57 However, while in principle the prop-
erty rights of native peoples that had not been ceded were not automatically
extinguished on the acquisition of sovereignty by a European power, in
practice these rights were bound to be considerably eroded if not denied
altogether.58
Certainly, Westlake did not believe international law could protect the
interests of indigenous peoples: international society in his view only con-
cerned itself with “regulating the mutual conduct of its members” and
indigenous peoples were not subjects of international law once they were
incorporated into the sovereignty of a European power.59 Indeed, irrespec-
tive of the debate concerning whether indigenous communities possessed
a right of sovereignty under international law or merely possessed property
rights, it remained the case that once they became “municipal unit[s]
within a larger State”, even where the formation of this larger state was
executed by treaty or treaties, such matters were rendered non-justiciable
within the context of the international legal order.60
54) Ibid., p. 123.

55) Ibid., p. 109.
56) Frantz Despagnet, Cours de Droit international public, [1894] 4th Edn (Paris: Recueil
Sirey, 1910), §396, p. 597.
57) Westlake, International Law, p. 109. See also Simpson, “Mabo, International Law, Terra
Nullius and the Stories of Settlement”, pp. 204–5. Grotius stated that, “whatever was originally
occupied by the people, and has not since been distributed, must be considered the property
of the people”. Grotius, De Jure Belli ac Pacis, Bk.II, Ch.VIII, §IX, p. 300.
58) Rosalie Balkin, “International Law and Sovereign Rights of Indigenous Peoples” in
Barbara Hocking, International Law and Aboriginal and Human Rights (Sydney: Law Book
Co., 1988), p. 29.
59) Quoted in Anaya, Indigenous Peoples, p. 21.
60) James Crawford, The Creation of States in International Law (Oxford: Clarendon Press,
1979), pp. 182–183. See also Westlake, International Law, p. 64.
Nineteenth Century Continental Critiques

Lindley maintained that although Westlake’s position reflected the broad
outlook in England, it was not generally shared by continental European
jurists and derived “little support from classical writers on International
Law”.61 Lindley noted that a number of continental writers (Silvestre
Pinheiro-Ferreira, Johann Kaspar Bluntschli and Friedrich de Martens),
denied, to a greater or lesser degree, sovereign rights to indigenous peoples,
classifying the territories they inhabited as res nullius on the grounds
that they lacked civilisation.62 However, he also noted that a signifĳicant
number of nineteenth century continental publicists rejected this position
on the basis that it violated the principle of equality among both individu-
als and nations. This insistence on the natural rights of overseas peoples
was particularly evident in French legal commentary. This is perhaps not
surprising given that the 1789 Declaration of the Rights of Man and the
Citizen had from the outset been seen as applicable to “the people of colour
of a free condition as much as to the whites”, and given the fĳierce insistence
on non-intervention and denunciation of wars of conquest in the immedi-
ate post-revolutionary context.63
Also influencing debate on the topic in France and elsewhere were the
ideas of Rousseau and, more especially, Kant. Both of these thinkers were
renowned, as the Swiss jurist Joseph Hornung put it, for their “weakness for
small nationalities, even the barbarous”.64 Continental publicists following
pp. 18 and 45. More recently, Simpson has similarly noted that Westlake’s view “tended to
be” in the “minority”. See Simpson, “Mabo, International Law, Terra Nullius and the Stories
of Settlement”, note, p. 201.
62) Pinheiro-Ferreira argued that indigenous peoples did not have any right to their
sovereignty, although he sought to temper this claim in stating that the “State occupying
must have the will and the means to instruct the indigenous [population].” Quoted in Jèze,
Étude théorique, Bk.II, Ch.I, Section I:A, p. 111. Salomon who viewed Pinheiro-Ferreira as the
most defĳinite among the publicists on the right of civilisation, thought that this notion was
little deserving of the description “juridical” and that it was also “utopian”: it meant, in efffect,
that a territory can be “considered or not as res nullius according to the intentions more
or less philanthropic of the occupant”. Salomon, De l’occupation des territories sans maître,
Pt.III, Section III, Ch.II, §79, pp. 204–205.
63) Ernest Nys, Études de Droit international et de Droit politique (Brussels: Alfred Castaigne,
1896), p. 272 and “The Codifĳication of International Law”, American Journal of International
Law Vol. 5, No.4 (October 1911), pp. 871–900, p. 876.
64) Joseph Hornung, “Civilisés et barbares”, Revue de Droit international et de Législation
comparée, Vol. 17 (1885), pp. 447–470, p. 469. The Swiss jurist Hornung contrasted the outlook
in their wake included the French publicists Gérard de Rayneval and

Eugène Ortolan and the German publicist Johann Ludwig Klüber. De Ray-
neval conceded a right of occupation of the lands of nomads, that is, “hordes
errantes et passagères” because their occupation is only “transitory” and
“foreign to every idea of conservation”.65 Yet in regard to the manner of the
European conquest of the Indies, Africa and North America, he claimed
that the “tribunal of reason” for a long time had judged it as being in viola-
tion of “all the principles of natural law and the law of nations”, adding that
this policy of conquest had been guided by “ambition and avarice”.66
Ortolan similarly argued that a people occupying only certain isolated
points in a territory cannot claim ownership of the entire country: the parts
of a country not occupied by them are efffectively “without master” and can-
not be legitimately acquired by other states. Much the same, according to
Ortolan, applied to those countries traversed by “hordes voyageuses”. Such
groups, he maintained, do not undertake those works for which the “earth
is appropriated to man” and “attribute to themselves” more land than
“would be necessary if they were sedentary” and given to agricultural pro-
duction. It would not seem legitimate, Ortolan indicated, to deny to nations
in want of territory the right to appropriate lands that they would be willing
to cultivate. Yet Ortolan thought that these considerations in no way
applied to the indigenous peoples of America in the 17th century. They had
been victims, he insisted, of an unjust policy that “demanded in principle”
recognition of European sovereignty while “ignoring completely the rights
of the Indians”.67 Ortolan’s conclusion was that since science does not “dis-
tinguish between men” and that the “truths of justice exist for all”, even
those who have not established a state equipped with the powers of a civi-
lised state have a right to their territory, an idea which Ortolan believed
had gained increasing recognition in international law as reflected in the
of Rousseau and Kant with that of Hegel, condemning Hegel’s view that the “barbares,
having neither culture, nor philosophy, are nothing.” Hornung stated that “every individual
or collective soul, however uncultivated and humble it be, must be respected in its dignity
and liberty See Georg F. Hegel, Hegel’s Philosophy of Right, Trans. T. M. Knox (Clarendon:
Oxford University Press, 1942), §331 and 351, pp. 212–213 and 219. On Kant’s influence Jèze,
Étude théorique, Bk.II, Ch.I, Section I:A-B, pp. 104–5; note, pp. 107 and 115.
65) Gérard de Rayneval, Institutions du Droit de la nature et des gens, 2nd edn (Paris: Chez
LeBlanc 1803), Ch.VII, §5, pp. 153–154.
66) Quoted in Jèze, Étude théorique, Bk.II, Ch.I, Section I:A, p. 105.
67) Eugène Ortolan, Des moyens d’acquérir le domaine international ou propriété d’État entre
les nations (Paris: Amyot, 1851), p. 50.
practice of cession.68 As for Klüber, he insisted that for “occupation to be

legitimate the thing must be susceptible to exclusive ownership” and thus
it “must belong to no-one”. Indeed Klüber, wanting to avoid all ambiguity
on the subject, went further than either Rayneval or Ortolan in denying
that the right of civilisation can be asserted even against nomads.69
This range of opinion was reflected in late nineteenth century medita-
tions on the subject, with some publicists advocating a right of civilisation
in an attenuated form and others advocating a less ambiguous stand.
Pasquale Fiore provided an example of the former form of advocacy in his
International Law Codifĳied (1890). In addressing the international status of
“[b]arbaric people”, Fiore identifĳied two social groups: tribal peoples set-
tled in a territory who recognised “the authority of their chief” and nomadic
peoples “who have no form whatever of political organization”. Both of
these groups Fiore argued, irrespective of their defĳiciencies in regard to
political organisation and culture, enjoyed certain protections under inter-
national law based on the “rights of man and the human personality”.70
Both groups enjoyed “international rights”, including territorial rights,
which should be “recognized and respected”.71
Fiore did not oppose colonisation, arguing that it was the duty of civi-
lised countries to difffuse civilisation, yet he maintained that the difffusion
of civilisation should not serve as a justifĳication for conquest or coercion.
“[H]owever praiseworthy” may be the motives of a state in seeking to
occupy a territory in order to advance civilisation Fiore stated echoing
Kant, he could not allow that civilisation may be “promoted by armed
force”.72 However, Fiore also insisted on the “right” of civilised states “to
occupy land which is of no use to the savages”. The basis for this contention
was a familiar claim: the “earth is in general designed to serve the needs” of
68) Ibid., p. 51 and Jèze, Étude théorique, Bk.II, Ch.I, Section I:A, p. 106.
69) Johann Ludwig Klüber, Droits des gens moderne de l’Europe, [1819] reviewed, annotated
and completed by Augustine Ott, (Paris: Librairie de Guillaumin et CIE, 1861), Titre II, Ch.I,
§125, p. 157; note, p. 157. Augustine Ott added the following annotation to Klüber’s point: “In
consequence, no nation is authorised by its qualities, whatever they be, notably by a high
degree of culture” to take another peoples’ property. A nation, Ott added, may not even take
the property “of savages or nomads”. See also Jèze, Étude théorique, Bk.II, Ch.I, Section I:A,
p. 106, and Salomon, De l’occupation des territories sans maître, Pt. III, Section III, Ch.II, §79,
p. 202.
70) Pasquale Fiore, International Law Codifĳied and its Legal Sanction, or the Legal Organization
of the Society of States [1890] Trans. Edwin M. Borchard (New York: Baker, Voorhis and
71) Ibid., Ch.II, §16, p. 46.
72) Ibid., Bk. III, Title III, §1062 and 1085, pp. 423 and 430.
all its inhabitants and thus it is “not permissible that savages who are unable
to derive any profĳit from natural products should be allowed to leave
sources of wealth unproductive”.73 Yet here too Fiore insisted on the
employment of lawful means. Fiore contended that the acquisition of “use-
less land” in the territories occupied by “savage tribes”, whom he stated
“must be regarded as invested with sovereign power” in cases where they
are “governed by chiefs elected according to their custom”, should be
obtained by means of negotiation with a view to “cession by payment of
compensation.”74
Salomon rejected such defences of a qualifĳied right of civilisation as
“dangerous”. He contended that states, in order to justify their colonial
plunder, would invoke the principles articulated in defence of this so-called
right while ignoring any qualifĳications attached to it.75 Beyond this, how-
ever, Salomon questioned the soundness of the method of defĳining the
extent of a group’s territorial rights on the basis of its level of political
organisation. Salomon insisted that “in practice” it is very difffĳicult to deter-
mine what exactly is a state, adding that there not very many political com-
munities which “conformed perfectly” to the theoretical notion of the state.
In any case he continued, the entity sitting in judgement of whether a state
is “sufffĳiciently civilised” or a “tribe sufffĳiciently organised in order that occu-
pation is impossible” inevitably would be the state desirous of occupation.76
In making these observations, Salomon was offfering criticism of Bluntschli
who classed as territorium nullius any “country which does not form part of
any State and [is] possessed by some barbarous tribes”. However, it should
be noted that Bluntschli’s position on this score was regarded as “analogous”
73) Ibid., Bk. I, Title II, §99, p. 120 and Ch.II, §16, p. 46 Fiore maintained that civilised countries
needed “to extend their present possessions and to occupy those parts of the earth which
are not of any use to uncivilized peoples” in order to establish “new outlets for their ever
increasing activity.” However, he added that “colonization is legitimate only when exercised
in a manner not in disregard of the international rights of uncivilized countries.”
74) Ibid., Bk.I, Title II, §99, p. 120 and Bk.III, Title II, §1062, pp. 424–424. Fiore conceded that the
territories of tribes governed by chiefs “cannot in truth be considered as territories without
a sovereign”. Therefore, Fiore stated, he “cannot, in principle, admit that the occupation of
these countries can take place the same way as in countries actually unoccupied”. Note that
Fiore also insisted that nomadic peoples cannot be “ruthlessly deprived of their lands”.
75) Salomon, De l’occupation des territories sans maître, Pt.III, Section III, Ch.II, §79–80,
pp. 201 and 208.
76) Ibid., Pt.III, Section III, Ch.II, §80, p. 208.
to that of Fiore.77 Salomon also stated in relation to Bluntschli’s argument

that he did not understand “how a thing possessed by someone” could be
“qualifĳied as nullius”; indeed, he pointed out that Bluntschli, while admit-
ting of a right of civilisation, efffectively excluded any “practical” means of
its realisation. Bluntschli insisted that European powers might only legiti-
mately acquire the land of native peoples by peaceful means: through
obtaining the consent of the native inhabitants, paying adequate compen-
sation and allowing them to emigrate in peace. Such qualifĳications demon-
strated, Salomon argued, that Bluntschli recognised that the rights of such
peoples are well founded.78
Citing Louis Renault’s position on the issue, Salomon maintained that
the presence of a human society on a defĳinite piece of territory is sufffĳicient
to establish certain essential rights: rights of possession, property and sov-
ereignty, each of which remain sacred whosoever their holder may be. Salo-
mon urged that “skin-colour or a state of civilisation little advanced does
not prevent barbarous or savage peoples from exercising the rights of
sovereignty . . . sufffĳicient to render any violent occupation of their country
contrary to law”, although on this last score it should be recalled that the
same position was adopted by Bluntschli and Fiore.79
Frantz Despagnet echoed Salomon in urging that “every sovereignty”,
even that of the “barbare”, should be respected however “rudimentary” it
may be. Despagnet maintained that while a lack of civilisation might be
considered a “misfortune” for “savage people”, it could hardly be regarded
77) Johann Caspar Bluntschli, Droit international codifĳié (Paris: Librarie de Guillaumin,
1874), Bk.IV, §280, pp. 171–172. Bluntschli stated: “The surface of the earth is destined to be
cultivated by man, and humanity is destined to extend civilisation on the earth”. He added
that if this goal is to be attained “civilised nations” must take in hand the education and
direction of the peuplades sauvages”. See also Salomon, De l’occupation des territories sans
maître, Pt.III, Section III, Ch.II, §79, p. 205 and Jèze, Étude théorique, BK.II, Ch.I, Section I:C,
pp. 121–122.
78) Salomon, De l’occupation des territories sans maître, Pt.III, Section III, Ch.II, §79, pp. 201
and 206–207 and Bluntschli, Droit international codifĳié, Livre IV, §280, p. 171. See also Jèze,
Étude Théorique, Bk.II, Ch.I, Section II:B-C, pp. 116n, and 121–124.
79) Salomon, De l’occupation des territories sans maître, Pt. III, Section III, Ch.II, §79, p. 206.
Renault had written of the “essential rights, which derive from the existence of a human
society . . . [and] from its establishment on a determinate territory.” He complained that too
often so-called civilised nations had “abused of their power” in declaring “unjustifĳiable wars”,
on the “so-called barbarians” and violating “the most elementary rules of the law of nations.”
Louis Renault, Introduction à l’Étude du Droit international (Paris: L. Larose, 1879), §17, p. 22.
See also Jèze, Étude théorique, Bk.II, Ch.I, Section II:B, pp. 112,116n and 118.
as their “downfall”.80 Indeed, Despagnet added, civilisation is an “emi-

nently relative thing, which cannot measure itself”. Despagnet observed
that the notion that only one’s own society possesses “true civilisation”
gives rise to the belief that one has the “right to impose it on others”. Such a
belief, he warned, was a potential threat to the security of peoples in Europe
as much as elsewhere. Hence, he asked rhetorically: “What say, if we accept
this theory, of the Germanic race wanting to submit the Latin races to the
Deutsche Kultur”.81 Nonetheless, and despite his reservations concerning
the droit de civilisation, Despagnet conceded that lands inhabited by “peup-
lades”, that is, by small tribes lacking in “appreciable political organization”
and not “even having a conception of sovereignty” (and as an example of a
people without such a conception he mentioned the “Peaux-Rouges” of
North America), were “susceptible to occupation”.82
Two other French commentators deserve mention in this context: Jèze
and Bonfĳils. Like Salomon, Jèze denounced the right of civilisation, an early
statement of which he discerned in Vitoria’s De Indis even while acknowl-
edging the latter’s proclamation of the rights of indigenous peoples. Jèze
stated that, having reflected on the question, it is “in favour of the absolute
right of the indigenous that we must decide”: that the territories of indige-
nous peoples must be considered “inviolable” and “closed” even to the
“more instructed”. The contrary argument, he insisted, merely served to
“consecrate under the pretext of civilisation, the maxim [that] ‘Force sur-
passes Right’” and violated, behind “juridical appearances, the fundamental
rule of the equality of the races”. Finally, Jèze dismissed the notion that
there existed “to the profĳit of the civilised nations a right analogous to the
right of expropriation” for reasons of “public utility”. As noted above, Jèze
like Salomon discussed this last notion in relation to Vattel, although Jèze
did so in a rather more qualifĳied fashion.83
As for Bonfĳils, he rejected the thesis (which he ascribed to Vattel, Chief
Justice Marshall, Bluntschli and Westlake), that “savage peoples can only
pretend to a sovereignty limited by the rights of colonization and of civilisa-
tion”: the thesis that “savage peoples” may possess “private property” but
cannot be said to possess sovereignty since this is a concept they cannot
80) Despagnet, Droit international public, §396, pp. 597–8.

81) Ibid., pp. 596–7. See also and Jèze, Étude théorique, Bk.II, Ch.I, Section I:A–B, pp. 111n–115
and Salomon, De l’occupation des territories sans maître, Pt. III, Section III, Ch.I, §77, p. 196.
82) Despagnet, Droit International Public, §396, pp. 596 and 598.
83) Jèze, Étude théorique, Bk.II, Ch.I, Section I:A–B, pp. 109–10 and 112.
understand. Nor had Bonfĳils any time for the argument that due to their
“superior sovereignty” Europeans were duty bound to bring the “benefĳits of
civilisation” to overseas peoples. He counselled his readers not to “look too
closely at this so-called civilisation” that the Europeans purport to bring,
adding that “[i]t is always the law of the most strong that Europe, and above
all England, apply”. Dismissing the views of those who would deny inde-
pendence to tribal peoples, Bonfĳils instead recommended the positions
adopted by Georg-Friedrich von Martens, de Rayvenal, August Wilhelm
Hefffter, Ortolan and Salomon: that “respect for the right of independence
and for the interior sovereignty of the barbarous tribes”.84
Revealing an appreciation of cultural diffference as well as continuity,
Bonfĳils added that while indigenous societies may not comprehend sover-
eignty in the same manner as the people of Europe (although in this regard
he noted that the contemporary European understanding was not the
same as it was in the tenth century), they nonetheless had a “certain notion”
of it, as evidenced by their “treaties, truces, alliances and even in the protec-
tion that their rulers had offfered peaceful explorers”. However, he accepted
that sovereignty may be acquired through voluntary cession, provided
that, as Fiore had also argued, any such cession was not a disguised form of
occupation. 85
Sovereignty and Treaties of Cession

Even the British publicist William Edward Hall, whose general position was
that a territory which had not been appropriated by a “’civilised or semi-
civilised state’ is open to Occupation”, conceded that peoples deemed to be
84) Henry Bonfĳils, Manuel de Droit international public, 7th ed., rev. by Paul Fauchille (Paris:
A. Rousseau, 1912), Pt.II, Livre II, Ch.I, §546 and 548, p. 385. Lindley writes that Martens
stated that natural law “does not authorize Christian people to efffectively take the districts
occupied by savages against their will” he excepted from this stricture “districts simply
held by nomadic tribes” from this prescription. Lindley, The Acquisition and Government of
Backward Territory in International Law, p. 17. Hefffter stated that “no power on earth has
the right to impose its laws on a people even if they are erratic or savage”. At the same time,
Hefffter conceded that in the interest of conserving the human race, nations could unite to
force open the doors of a country which were hermetically closed to their commerce”, a
concession which Jèze thought was of a nature to “bring a grave attack on the absolute rights”
of the “indigènes”. Jèze, Étude théorique, Bk.II, Ch.I, Section I:A, p. 107. See also Salomon, De
l’occupation des territories sans maître, Pt.III, Section III, Ch.II, §79, p. 202.
85) Bonfĳils, Manuel de Droit international public, Pt.II, Livre II, Ch.I, §547–548, p. 384.
lacking in civilisation may be viewed as sovereign.86 Hall stated that in the

abstract there is nothing to prevent “even a wandering tribe” from being
deemed a subject under international law. Continuing in this vein, Hall
contended that there is “nothing . . . to render the possession of a fĳixed seat
an absolute condition of admission to its benefĳits” and in support of this
contention he pointed out that the notion of “tribal or national sovereignty”
had been universally accepted after the fall of Rome. However, this notion
had been lost in the medieval period, Hall stated, due to the ascendancy of
the “feudal idea which united the right of control with the possession of a
determinate portion of land”. This union of right of control with the posses-
sion of defĳined territory, he added, was reinforced by the replacement of
feudal with Roman doctrine legal doctrine in the sixteenth century. Thus,
what prevented wandering tribes from being deemed subjects under inter-
national law, Hall concluded, was simply a requirement born of the “cir-
cumstances of the special civilisation” that gave rise to that body of law:
that sovereignty in the sense of “exclusive control, over the members of a
specifĳic society” entails the possession of “a fĳixed territory”.87 Finally it
should be noted that Hall, unlike Westlake, allowed that “uncivilised and
semi-civilised peoples” could enjoy powers of internal sovereignty where
these had not been “surrendered by treaty”.88
Hall’s view in regard to the surrendering by treaty of tribal sovereignty
was in evidence at the Berlin Africa Conference, which was held in the
years 1884–1885. The Conference was designed to ease the competitive
pressures amongst European powers in regard to the future of the Congo
Basin and the continent of Africa in general through reaching an agree-
ment on what manner of acquiring territory should be undertaken in order
to “establish legitimate title to territory” in the region.89 At the meeting of
January 31, 1885, the American plenipotentiary at the Conference John A.
Kasson suggested that the Conference’s Declaration, which only provided
for minimal requirements concerning the acquisition of tracts of land on
86) Lindley, The Acquisition and Government of Backward Territory in International Law, p. 18.
See also William Edward Hall, A Treatise on International Law [1880] ed. J.B. Atlay, 5th Edn
(Oxford: Clarendon Press, 1904), Pt.II, Ch.II, p. 100.
87) Hall, Treatise on International Law, Pt.I, Ch.I, pp. 19–20.
88) Hall, Treatise on International Law, Pt.II, Ch.II, p. 125. See also Lindley, The Acquisition
and Government of Backward Territory in International Law, p. 18.
89) Yasuaki Onuma, “When was the Law of International Society Born? – An Inquiry of the
History of International Law from an Intercivilizational Perspective”, Journal of the History of
International Law, Vol.2 No.1 (July 2000), pp. 1–66, p. 40.
the coasts of Africa, should explicitly address the rights of native rulers.90 In
a statement that was widely cited soon after, Kasson observed that:
Modern international law follows closely a line, which leads to the recognition
of the rights of native tribes to dispose freely of themselves and of their hered-
itary territory. In conformity with this principle, my Government would gladly
adhere to a more extended rule based on a principle, which should aim at the
voluntary consent of natives whose country is taken possession of in all cases
where they have not provoked aggression.91
Anthony Anghie argues that according to Westlake, Conference delegates

were cautious in their appraisal of Kasson’s proposition and maintains that
scholarly opinion was divided as to whether Kasson’s proposal “reflected
the practice of states”.92 By contrast, James Crawford argues that Kasson’s
proposal in fact did represent the stance of international law at the time.93
In relation to Crawford’s position, it should be noted that Lindley regarded
it as signifĳicant that the Conference did not “repudiate” Kasson’s proposal
and he maintains that the sovereignty of African princes was acknowledged
in the course of the conference.94 Lindley’s position is supported by obser-
vations made by Salomon, Despagnet, Bonfĳils and Fiore. For example, Salo-
mon pointed out that despite the lack of success of Kasson’s proposition in
that it was not formally adopted, the diplomats at the Conference “on
diverse occasions implicitly approved of an approach consisting of passing
treaties with indigenous chiefs”.95
However, another complexity arises at this point: according to Roman
legal doctrine, from which the concept of sovereignty is derived, “the one
90) Westlake, International Law, p. 108.

91) Quoted in Crawford, The Creation of States, pp. 178–179.
92) Anthony Anghie, “Find the Peripheries: Sovereignty and Colonialism in Nineteenth-
Century International Law”, Harvard International Law Journal, Vol. 40 No. 1 (Winter, 1999),
pp. 1–80, p. 59.
93) Crawford, The Creation of States, p. 179.
pp. 33 and 46.
95) Salomon, De l’occupation des territories sans maître, Pt. III, Section III, Ch.III, §83, p. 217.
See also Bonfĳils, Manuel de Droit international public, Pt.II, Livre II, Ch.I, §549, p. 385 and
Despagnet, Droit international public, §396, p. 598. Despagnet wrote that even though no
formal statement on the matter issued from the Conference, “‘[I]t is the respect absolute for
every sovereignty that has prevailed”. For Fiore’s approving citation of Kasson’s position see
Fiore, International Law Codifĳied and its Legal Sanction, Bk.I, Title II, §99, p. 120.
thing a sovereign cannot do is destroy his own sovereignty”.96 This idea is

intimately bound up with the understanding of sovereignty as impersonal
power and it is an idea that has found repeated expression in the work of
political and legal theorists over a number of centuries: that of Bodin, Hob-
bes, Rousseau, Blackstone, Austin and Dicey. Lying at its base is the insight
that sovereignty is constituted power and that as such it cannot be exer-
cised in a manner which contradicts the grounds of its being. An authority
wielding sovereign powers which attempts to cede the sovereignty of the
state simultaneously renounces its capacity to act: it renders itself constitu-
tionally inanimate.
Now the point has often been made that obtaining colonies by means of
treaties of cession was an admission of the fact that the communities ced-
ing their powers were actually sovereign since treaty-making assumes the
presence of two or more states standing in a relation of legal equality. How-
ever, the issue I want to raise here concerns the theoretical impossibility of
ceding sovereignty by means of a treaty. Some contemporary indigenous
groups strongly reject the notion that the legal compacts reached between
indigenous peoples and Europeans seeking to settle in their lands entailed
the surrender of their “international juridical status as nations/peoples”.
This is not simply because the indigenous peoples may have been deceived
in the course of treaty negotiations, misunderstood, or were ignorant of the
actual terms of the agreements they ratifĳied or only submitted to them
under duress. Indeed, the argument here is that any such surrender by indi-
genous rulers was theoretically impossible because “ancestral traditions
and culture simply would not allow them to relinquish” their rights in rela-
tion to “lands and governance”.97 Is there not in this more than a trace of
the old argument that the bearer of the sovereign power is constitutionally
96) Rousseau expresses this point in arguing that the sovereign number cannot “alienate a
part of itself or submit to another sovereign”. He maintains that it is impossible and “self-
contradictory” for the sovereign to either limit itself or alienate its power. The sovereign
exists only by virtue of the social contract and to “violate the act which has given it existence
would be to annihilate itself; and what is nothing can produce nothing”. Jean Jacques
Rousseau, The Social Contract (Harmondsworth: Penguin, 1968), Bk.I, Ch.VII, p. 63.
97) Miguel Alfonso Martínez, “Human Rights and Indigenous Peoples: Study on Treaties,
Agreements and Other Constructive Arrangements Between States and Indigenous
Populations”, Final Report, E/CN.4/Sub2/1999/20, 22 June (1999), paras. 265–266, accessed
from http://www.unhchr.ch/ Huridocda/Huridoca.nsf/0/696c51cf6f20b8bc802567c4003793
ec?Opendocument> on 2012–10–26.
incapable of alienating the sovereignty of the state and its corollary, that
any treaty purporting to do so is void?
Conclusion
Taking the views of the range of publicists discussed herein together, the
picture that emerges is one of near unanimity in regard to the principle that
indigenous peoples had a right to their territory.98 However, it is also the
case that there was often ambiguity in regard to the extent of their territo-
rial rights. Ambiguity in this regard was viewed by Salomon as troubling
because he considered that any concession to the right of civilisation would
serve to legitimate colonial dispossession and spoliation. It was a better
strategy, Salomon contended, to insist clearly on the right of independence
of indigenous peoples rather than attempt, as Bluntschli and Fiore sought
to do, to qualify a putative right of civilisation. For this reason Salomon
maintained that the territory of any distinct human society should be
closed to all-comers. In upholding this position, Salomon demonstrated, as
did Jèze and to a lesser extent Bonfĳils, that it was quite possible to conceive
of indigenous societies as sovereign, irrespective of considerations con-
cerning civilisation. Indeed, as Ortolan had earlier argued, the acceptance
of the principle that the acquisition of lands deemed surplus to indigenous
requirements should be obtained by means of cession, was a signifĳicant
concession to this position.
The insistence on an unconditional approach to the question of indige-
nous territorial rights, neatly parallels the concerns Las Casas raised regard-
ing what he saw as Vitoria’s slight moderation of his position in the face of
the Emperor’s party. Las Casas, of course, was addressing the issues of indig-
enous rights at a time before the interest of religion gave way to the interest
of civilisation as the chief pretext for colonisation. Yet the continuity
between these justifĳications was well understood by critics of colonialism
in the guise of the mission civilisatrice. That said, Salomon maintained that
those who sought to impose the true religion by force at least had the excuse
of being “blinded by fanaticism”.99 By contrast the rhetoric of civilisation
on the part of colonising states tended to be viewed as almost wholly cyni-
cal by many of its late nineteenth century critics: it was simply seen, to echo
99) Ibid., p. 194.
Plutarch, as a means of concealing greed for what belongs to another.100

Adding a seemingly modern flavour to the late nineteenth discussion, was
the nature of the questioning of the intellectual basis of claims to a right of
civilisation. Both Despagnet and before him Salomon, albeit taking their
cue from Michel de Montaigne’s essay entitled “Of Cannibals” (1580),
pointed to the culturally loaded character of notions of civilisation, arguing
that it was impossible to take intellectually seriously the idea that there is
one true civilisation in the benefĳits of which all must share. It certainly is
very difffĳicult to comprehend how such a vague notion as civilisation, a
notion which encompassed not only such criteria as political organisation
and law, but also social customs and forms of land cultivation, could be
presented as a legal standard. Pauka points out that no “common concept
of civilisation was discovered” and notes that at least one international law
author in the nineteenth century, namely Franz von Holtzendorfff, claimed
that “law was not competent to specify this term”.101 However, it might be
argued that the discovery of a common concept was, in an important
respect, beside the point. As Pauka also observes, the concern of many
nineteenth century publicists lay not with formulating “a general standard
that the ‘non-civilised states’ had to meet in order to enter the circle of the
‘civilised states’ ”; rather, the concern lay with rationalising and justifying
European colonial expansion.102
In addition, the supposed right of civilisation seemed to be a defĳiance of
the trend of international law at the time: a trend, to adapt Vattel, to limit
the number of pretexts affforded to ambition.103 Salomon warned that the
assertion of a right of civilisation might “legitimise the most grave attacks”
on the continent of Europe itself: was there not, he asked, a German, a
Slavic and a Latin civilisation in Europe and did not the partisans of each of
these insist at times on the “incontestable superiority of one over the
other”.104 Accordingly, we might say that by the close of the nineteenth
century the advocacy of certain publicists was motivated not only by a
sense of justice in relation to conquered peoples and an awareness of the
100) Ibid., p. 194 and Despagnet, Cours de Droit international public, §396, p. 597. Montaigne
states in the essay that “every one gives the title of barbarism to everything that is not in use
in his own country”.
101) Pauka, Kultur, Fortschritt und Reziprozität: Die Begriffsgeschichte des zivilisierten Staates
im Völkerrecht, p. 253.
102) Ibid., p. 252.
103) See note 23 above.
preposterous nature of some of the claims made in the name of civilisation.

There had also emerged an appreciation of the fact that ensuring respect
for the norm of sovereignty, as it applied to recognised or established states,
was not a question entirely separate from the promotion of respect for the
territorial rights of overseas peoples.

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Journal of the History of International Law 15 (2013) 25–52

The So-Called Right of Civilisation in European Colonial

Jo-Anne Claire Pemberton

. . . so long as it was confĳined to the stocking and cultivation of desert and

Critics of the asserted right of civilisation pointed to the ambiguous nature

Civilisation: Vitoria, Grotius and Vattel

Some have argued that Vitoria’s discussion of the possible titles by

Peace, Grotius’s argument in this context relies on a distinction between

This distinction between jurisdictional and property rights would reappear

Vattel regarded as “notorious usurpation” the Spanish conquest of the

argued that it is illegitimate for a nation to extend itself across a dispropor-

28) Ibid., Bk.II, Ch.VII, §86, p. 167.

internal sovereignty, there is a sense in which such families possess sover-

John Austin: Political Societies and Natural Societies

positive mark of sovereignty is that the “bulk of the given society is in a

John Westlake: Property but not Sovereignty

46) Ibid., Ch.III, §256 pp. 108–109.

when determining whether indigenous sovereignty exists is not merely the

When people of the European race encountered American or African tribes,

For Westlake the sovereign status of non-European peoples would appear

international title to territory cannot be based on ‘cessions made by native

This last observation might seem to contradict Westlake’s assertion, in

51) Quoted in Anaya, Indigenous Peoples in International Law, p. 20.

state.54 What this intelligence can comprehend, according to Westlake, is

54) Ibid., p. 123.

Nineteenth Century Continental Critiques

in their wake included the French publicists Gérard de Rayneval and

practice of cession.68 As for Klüber, he insisted that for “occupation to be

to that of Fiore.77 Salomon also stated in relation to Bluntschli’s argument

as their “downfall”.80 Indeed, Despagnet added, civilisation is an “emi-

80) Despagnet, Droit international public, §396, pp. 597–8.

Sovereignty and Treaties of Cession

lacking in civilisation may be viewed as sovereign.86 Hall stated that in the

Anthony Anghie argues that according to Westlake, Conference delegates

90) Westlake, International Law, p. 108.

thing a sovereign cannot do is destroy his own sovereignty”.96 This idea is

Plutarch, as a means of concealing greed for what belongs to another.100

preposterous nature of some of the claims made in the name of civilisation.

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