Page:ELO 1(1), 6–25. European public law after empires.pdf/7

12     Signe Rehling Larsen

ordained with sovereignty was qualitatively distinct from the ‘uncivilised’ world outside Europe where political communities, at best, could be recognised as partly or half sovereign.^[1] This legal order was based on a fundamental separation between the principles that governed and structured the relationship between the European metropoles as sovereign and equal states, and the laws and principles that regulated the ‘colonial encounter’ with the ‘uncivilised world’ outside Europe.^[2] The fundamental spatial distinction underlying Droit Public de l’Europe was between, on the one hand, the lawful order of Europe that ‘bracketed war’ among European states by subjecting war to legal rule and, on the other hand, the relative lawlessness of the ‘free and empty spaces’ in the New World, where land appropriation knew no bounds and only the law of the strongest prevailed.^[3] The New World was an area ‘where force could be used freely and ruthlessly’.^[4]

The world of Droit Public de l’Europe, therefore, was global but not universal. On a global scale, two different sets of rules applied: those regulating conduct among ‘civilised’ states in Europe, and those regulating conduct in the ‘uncivilised’ world.^[5] Since the non-European world in the eyes of Europeans did not live up to the European standard of ‘civilisation’ they did not exert sovereign authority over their lands. For that reason, in the eyes of Europeans, and European jurists,^[6] the world beyond Europe could be legally and legitimately subjected to the imperial control of the sovereign European states by a variety of different means ranging from conquest to cession.^[7] Even in cases of cession, however, non-Europeans were at best regarded as having private law ownership of land; never sovereign control over territory.^[8] The colonial title to territory was always seen as original.^[9] Whether the non-European territory was inhabited or not, it was in the eyes of Europeans a ‘free space’ that was ‘open to European occupation and expansion’.^[10] With the shift from informal to formal empire between the last two decades of the nineteenth century and World War One, the entire globe was partitioned into territories under the formal rule of a small number of, predominantly, European states.^[11]

1. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005) 52ff.
2. Ibid 5. See also, Abernethy, The Dynamics of Global Dominance 34; Koskenniemi, The Gentle Civilizer of Nations 85–6, 114–6.
3. In The Nomos of the Earth, Schmitt maintains that another spatial distinction in addition to the one between the Old World and the New World underpinned the concrete order of Jus Publicum Europaeum, namely, the antithesis between land and sea each with ‘its own concept of enemy, war, booty, and freedom’, see Schmitt, The Nomos of the Earth 172. The concrete link that connected the orders of land and sea was England (ibid ch 3). For Schmitt’s diagram of Jus Publicum Europaeum with its two constitutive distinctions between (1) land and sea and (2) European lands and non-European lands, see ibid 184.
4. Schmitt, The Nomos of the Earth 140, emphasis added.
5. The Old World of Europe was separated from the ‘New World’ by an Amity line. Schmitt, The Nomos of the Earth 93–4 writes: ‘At this “line”, Europe ended and the “New World” began. Consequently, so too did the bracketing of war achieved by traditional European international law, meaning that there the struggle of land-appropriations knew no bounds. Beyond the line was an “overseas” zone in which, for want of any legal limits to war, only the law of the stronger applied.’
6. For an overview of the legal discourse of international law that legitimised colonial expansion into non-European territories, see Koskenniemi, The Gentle Civilizer of Nations ch 2.
7. For a legal ‘manual’ on the different methods for colonial expansion, see Mark Frank Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (Longmans, Green and Co 1926). See also Koskenniemi, The Gentle Civilizer of Nations 129ff; Schmitt, The Nomos of the Earth 215–6.
8. Koskenniemi, The Gentle Civilizer of Nations 113–4, 126–8; Schmitt, The Nomos of the Earth 198–9.
9. Schmitt, The Nomos of the Earth 136.
10. Ibid 87.
11. For a discussion of the ‘demise’ of informal empire, see Koskenniemi, The Gentle Civilizer of Nations 116ff. See also, Doyle, Empires pt II; Schmitt, The Nomos of the Earth 220. Hobsbawm, The Age of Empire 57–8.