The question about the historical relation between international law and colonialism (and its legacy) has grown in relevance over the last twenty-odd years. Critical scholars speak of international law’s “complete complicity with the colonial project” – meaning the exploitation and domination of the global south. They point to the ‘dark side’ of the promises of ‘order’, ‘equality’, and ‘(world) peace’ inherent in the enlightened idea of the ius gentium europaeum.

It is important to point out that nineteenth-century contemporaries were already well aware of the relation between international law and colonialism but they did not look at it from a moral perspective. For some the connection between international law and the colonial undertakings of their time was at the heart of the legal development of the international order. Political Scientist Jesse S. Reeves reminded his readers in 1909: “Protectorates, spheres of influence, hinterlands, the position of savage and semi-civilized tribes, nominal and effective possession, territorial lease” – all these terms and the attempts to define them grew out of the academic and political discussions that began not later than 1884/85, when the Berlin Conference, which was concerned with the legal principles of the colonization of the Congo region, was held.

If (public) international law is also about the avoidance (and regulation) of disputes between states, the terminology used by Reeves is a frank reminder that European governments had for centuries been in constant disagreement about the precise definition and delimitation of these “protectorates”, “semi-civilized tribes” etc. The ius gentium europaeum in an extra-European context was thus not only about the denigration of “uncivilized nations” and the denial of the advantages of sovereignty to them, but also about the (attempted) exclusion of European competitors from the colonial realms. A quick glance at the Reports of International Arbitration Awards (RIAA) should convince anyone of the legal, but most of all the factual complexities that led to numerous European interstate disputes about colonial territories and their inhabitants.

One of the better-known of these European colonial disputes is the so-called Naulilaa-affair. The factual and procedural backgrounds of the Portuguese-German border war in the colony of Angola in late 1914 have frequently been summarized in various handbooks of international law. In 1914 three German officers were killed in the Angolan fortress of Naulila. Subsequently German colonial troops from neighbouring German Southwest Africa (GSWA) attacked and destroyed six Portuguese border fortresses inside Angola in what they described as “reprisal”. If we look at the Naulilaa-case from 1928, we will notice that the text of the award is almost entirely concerned with factual consideration about what had happened in the Angolan fortress of Naulila (Naulilaa is a misspelling that occurred in the award of 1928 and that was accepted henceforth in all international treatises and awards). Faced with Portuguese claims for damages against Germany after World War I, the three Swiss arbitrators in their ‘wie es eigentlich gewesen-approach’ weighted the plausibility of the presentations, evidences, and explanations given to them by the disputing parties in four legal memoranda, over twenty hearings of eye witnesses in Africa and Europe and the pleadings of the Portuguese and German national representatives. The transcripts add up to several thousand pages. Many of the Portuguese statements show a marked tendency to focus on the big picture, that is, on German expansionism in Africa and around the world since 1870. What I take to be of particular relevance for legal historical research is the following: During the arbitration procedure, while trying to expose the causes of the dispute (or refuting the adversary’s position), the national representatives basically acted as historians. Naturally, the lawyers had clear aims when they accused the other party of wrong-doing by referring to certain “events” in the past (while not mentioning others) to further their legal argument. If the arbitration case was—in a way—a continuation of the war by other means, then history – not law – became its foremost weapon. This, however, meant that ‘the past’ was seen through the necessities of ‘the present’ in order to support an argument and win the case. This actually was a well-proven ‘legal’ tactic especially for Portugal. The Portuguese government had previously won several arbitration cases over colonial territories (Bolama 1870, Delagoa Bay 1875) in which historical claims to the territories played a decisive role. In these disputes the legal, that is, the dogmatic, underpinnings were quite thin so that these ‘legal’ debates were in fact of ‘historical’ nature. I argue that if we look at these cases today, our interpretation should be guided by this insight. As legal historian Martti Koskenniemi rightfully underlines: “[M]ethodological concerns” for dealing with the past could not be expected. In the inter-war era, this was certainly a permissible strategy of ‘using’ history, since, “[f]rom the outset, [international law’s] self-understanding was historically informed.”

In my book I am arguing that the ‘constructive’ character of the international legal order becomes more evident by looking at the history of individual cases that are nowadays seen as landmark cases in public international law (cases like Caroline, Alabama Claims, Naulilaa, Corfu Channel, which are familiar to all students of international law) than by the all too common and narrow focus on the resulting awards. These awards are way too often condensed to a few ‘bullet points’. The Naulilaa-case is usually connected with the requirements of a lawful (forceful) reprisal: 1) A prior act contrary to international law; 2) an unsatisfied demand for reparation to the alleged wrongdoer; 3) the proportionality of the reprisal. The arbitrators held that these requirements were not met by Germany when it attacked the Portuguese fortresses in 1914.

Aside from the results of the arbitration, we should ask: Why were certain historical ‘facts’ taken into consideration by the arbitrators and others not? What was accepted as ‘a fact’ of history and what was not? For instance, would the outcome of the arbitration have been different if the disputed and unclear course of the Luso-German border along the Cunene River had been taken into consideration? Why were German attempts to contact the Angolan authorities deemed insufficient? The award does not give reasons for these decisions. Finally: What role did the historical colonial context play? In their award, the arbitrators abstained from using any notion of the colonies as a lawless space or a ‘laboratory’ that would have exotizingly justified the use of relentless violence (against Europeans). The award in fact underlined that the norms of international law were ‘universal’ and consequently binding for governments even in the colonies. The fact that the case arose out of a ‘colonial dispute’ did not hinder it from developing into a landmark case in international law. Also, it was of no relevance that the dispute had taken place in Africa between GSWA and Angola – and not, for example, between Germany and Belgium.

By asking these questions about the historical ‘why’ and ‘how’ of the legal procedures researchers get beyond the mere bullet points of the interstate arbitration awards. Archival findings can bring to the fore and make us aware of the pitfalls of historical ‘facts’. More historical research is needed to open the black box and shed light on how ‘history’ has been transformed by lawyers into ‘international law’.

Naulila 1914. World War I in Angola and International Law: A Study in (Post-)Colonial Border Regimes and Interstate Arbitration
by Jakob Zollmann
Nomos, 2016.