Of islands and sunny beaches: law and the acquisition of territory from the fifteenth to the nineteenth centuries.
Throughout the late Middle Ages and up to the early nineteenth century we find similar accounts of colonial powers taking possession of previously unclaimed territories. (2) The practices they employed to claim sovereignty ranged from burying coins and erecting crosses to setting sheep free, from the building of small wooden huts to the performance of sophisticated rituals that included the reading of lengthy declarations. To some extent these acts (3) were attempts of conquerors to legitimize their conduct in their own eyes in accordance with their respective cultures and traditions. (4) This essay will consider, however, the significance of these often-cumbersome procedures in the legal context of defending claims to sovereignty vis-a-vis other colonial powers.
Sketching the customs of the main colonial powers such as Portugal, Spain, and France during three different periods, it is suggested that these practices are the manifestation of the colonial powers' conviction that territory could only be acquired in exchange for specific acts. Title to territory had to be earned by incurring expense or detriment in the process of acquisition. The acts an explorer engaged in with respect to a newfound territory on behalf of his sovereign provided the justification as to why his claim would be valid vis-a-vis subsequent discoverers. This thesis will be put to the test and illustrated with respect to the colonial powers' conduct regarding islands in three epochs, which correspond roughly to Wilhelm Grewe's accepted periodization of international law (the late Middle Ages, the Spanish Age, the French Age). (5) The forthcoming analysis shall thereby shed some light on the role law played in history in this specific context.
It should, however, be noted at the outset that this brief analysis of the practices of the main colonial powers is necessarily incomplete as constraints of time and space limit the scenarios that can be evaluated. Further, the evidence is not always unequivocal as to the state of the law during the epochs under review. This means that although my thesis is strongly supported by the evidence, it might not be the only way to read the evidence. The uncertainty in this area is due to some extent to the fact that the actors on the international plane "did not act according to dogmatic legal considerations," (6) but as we shall see, that does not mean that it is impossible to discern certain patterns.
Late Middle Ages (Fifteenth Century)
It is important to remember that the law of nations during the late Middle Ages did not exist in the same form as we know it today. Rather, customary practices and treaties addressing specific subject matters (e.g. consular relations) regulated the dealings between different princes. Similarly, the concept of territorial sovereignty did not yet refer to well-defined, contingent areas, but to spheres of influences and dominions of a prince. (7) Nonetheless, it is critical to consider the conduct of colonial powers during this time as it allows us to appreciate the development of international law throughout the next centuries.
In the late Middle Ages, Spain (Castile/Aragon) and Portugal were the most important powers engaged in the exploration of overseas territories. The main sources of title to newfound territory were papal grants based on paragraph 13 of the Donations of Constantine. (8) The Donations of Constantine, (9) supposedly contained in an imperial decree of 315/317 A.D., had allegedly conferred upon the Pope (at the time Pope Sylvester I, r. 314-335) the power to dispose of those parts of the world that were either completely uninhabited, or inhabited by infidels. Curiously, the Donations of Constantine also conferred upon the Pope the right to dispose of the world's islands. (10) Despite the document's later demise, (11) the Pope's authority to dispose of newfound territories was not questioned until after the discovery of the Americas (12) and Portugal and Spain relied upon papal grants on many subsequent occasions.
In response to the Spanish challenge of Portugal's title to the Canary Islands in the 1470s, the Portuguese, for example, invoked numerous papal decrees including Nicolas V's Dum diversas (1452), (13) Romanus Pontifex (1455), (14) and Calixtus III's Inter Caetera (1456). (15)
Similarly, it was clear that the Pope (at the time Alexander VI, r. 1492-1503) would determine the extent of Spain's rights to the newly-discovered American territories following Christopher Columbus' landing on Guanahani (16) on 12th October 1492. Upon Columbus' return in March 1493, Spain immediately entered into negotiations with Portugal, whose rights to Asia (Columbus believed he had discovered the most western point of Asia) Spain was believed to have violated. Both parties turned to the Pope. Lengthy discussions, lasting from April until November of 1493, ensued. Eventually, Portugal and Spain agreed to the Treaty of Tordesillas (2 July 1494), which fixed the boundaries between the Portuguese and Spanish spheres of influence.
The fact that Spain and Portugal repeatedly invoked papal edicts and that they submitted to lengthy negotiations under the Pope's supervision illustrate the importance both powers attached to the legality of their actions. Further, the Spanish decree ordering Columbus to "keep 100 leagues away from the Portuguese possessions" (17) before his departure shows the extent to which legal requirements shaped the kingdoms' actions.
Given that papal decrees were the source of the title to discovered territories, some might question whether Spain and Portugal really acquired sovereignty over those lands in exchange for a detriment or service as argued in the introduction. However, the detriment in these cases consisted of the kings' obligation to expand the territorial reach of Christendom and to convert the inhabitants of foreign countries to Christianity. (18) Further, the kingdoms' otherwise existing obligation to pay financial tribute to the Pope was generally dispensed with in light of the detriment "involved in the carrying out of exploratory expedition to the overseas regions." (19)
Nonetheless, it is evident that the character of detriment necessary to confer upon a colonial power a valid claim to a given territory vis-a-vis other powers differed in the late Middle Ages from the detriment required in later periods. This is due to the fact that, for the time being, the Pope was still considered to be the administrator of all newfound territories. As such, title (20) to newfound territory could be acquired directly from him. There was not yet the need to transform previously unclaimed territory into the exclusive property of one single power and to establish the superiority of that power's claim vis-a-vis the claims of other powers.
We shall see in the next section that in the aftermath of the discovery of America support soon grew for the views of writers such as Bartolus de Saxoferrato (1313-1357). (21) Powerful temporal leaders and early Protestant movements increasingly challenged the Pope's position as ultimate lord over the world's territories. Eventually, it was accepted that all newfound territories were no-man's land (terra nullius), which could be claimed by explorers if certain conditions were satisfied.
The Spanish Age: (Sixteenth and Seventeenth Centuries)
After the discovery of the American continent in 1492 and the rejection of the 1494 Treaty of Tordesillas by the other European powers whose interests the treaty ignored entirely, it became very clear to Spain and Portugal that papal grants of territory were no longer defensible sources of title. During a controversy over access to the Indies in 1580, Queen Elizabeth of England (r. 1558-1603) left no doubt that in her majesty's view "(t)he Pope had no right to partition the world and to give and to take kingdoms to whomever he pleased." (22) Increasing competition from the Dutch and English for colonial possessions led Spain and Portugal to relax reliance on papal grants. Instead they increasingly resorted to arguments based on the right of discovery.
Claims based on the right of discovery often buttress modern legal arguments to title and possession, although courts and arbitrators still struggle to reach unequivocal determinations. In the 1928 Islands of Palmas Case between the United States and the Netherlands, for example, the United States argued in favor of the "unquestioned validity of title based on discovery" in the seventeenth century, (23) while their Dutch counterparts denied this contention. (24) However, in 1875, Delagoa Bay was granted to Portugal based on Portugal's earlier discovery of the bay in the sixteenth century. (25) In the 1885 dispute between Spain and Germany over the Caroline Islands, Spain successfully relied on her earlier discovery of the islands as well. (26)
Nevertheless, and despite the fact that certain Spanish and Portuguese claims based on discovery were at times recognized, "no state appeared to regard mere discovery, in the sense of 'physical' discovery or simple 'visual apprehension' as being in any way sufficient" (27) to establish valid claims to newfound territories.
That is why the colonial powers so often resorted to symbolic annexation, which was more than discovery in the sense of mere "visual apprehension", but less than effective occupation as required in later centuries and until today. Symbolic annexation could take many different forms. One example was mentioned in the introduction and involved the cutting of tree branches and erecting a cross, but taking earth or stones (Captain John Cunningham on Greenland on behalf of the King Christian IV of Denmark in 1605), (28) the recitation of a verbal formula (Captain Francis Drake on Santa Marta, Elizabeth and Santa Magdalena islands on behalf of the English Crown in 1578), (29) or the cutting of trees and display of the royal couple's picture wrapped around a tree so that "no Weather could hurt them" (Captain Thomas James on Charlton Island on behalf of the English Crown in 1632) (30) were apparently also sufficient. To similar effect the Spanish Crown had ordered Alonso de Hojeda in 1501 to erect signs wherever he landed "in order to stop the discoveries of the English by that route." (31)
The ceremonies and acts of taking possession of such islands must have been quite a spectacle. Of Captain Wyatt's landing on the island of Trinidad on February 3, 1595 it is reported:
... wee caused the trumpets to bee sownded solemlie three several times, our company trooping rownde; in the midst marched Wyatt bearing the Queenes armes wrapped in a white silke scarfe, edged with a deep silver lace, accompanied with Mr. Wright and Mr. Vincet, each of us with our armes, having the Generall's coller displaid. thus marching up to the top of the mountaine unto a tree which grew from all the rest wheare wee made a stande. And after a general silence Wyatt red it unto the troope, first as it was written in Latin, then in English; after kissing it, fixed it on the tree appointed to bear it, and having a carpenter placed alofte with hammer and nailes ready to make it fast, fastned it unto the tree. (32)
Rituals like those performed by Captain Wyatt on Trinidad not only served to distinguish a specific territory like the island of Trinidad from the undifferentiated mass of terra nullius and to evidence an express intention to take possession of a given territory, but, as recent scholarship further suggests, the elaborate ceremonies and rituals marked the land in a way unique to the traditions and "cultural histories" (33) of the respective power claiming a given territory. That way the conquering power established a specific link between itself and the land.
However, even though the exact manifestation of the colonial powers' acts on newfound territories differed, they all shared the view that a legitimate claim vis-a-vis the other powers to a previously unclaimed territory could only arise from specific acts involving labor and expense. According to Grewe, "the nation which had shouldered the cost, the labor and the pain of the discoveries, [w]as the only one which in all fairness was entitled to harvest the fruits of this labor, sacrifice and pain." (34) Similarly, Abel Tasman of the Netherlands was instructed by the Dutch East India Company in 1642 to "take possession everywhere" to prevent "any other European Nation from reaping perhaps the fruits of our labor and expenses in these discoveries." (35) That would also explain why mere discovery was probably never sufficient to confer sovereignty over a territory. The "cost, labor and pain" involved in mere "visual apprehension" was simply not enough to justify an exclusive claim to a given territory.
It is not surprising then that soon even the practice of symbolic annexation, still short of exercising effective control over an island, came under intense pressure as younger colonial powers such as Great Britain, the Netherlands, and France entered the competition for the world's remaining unclaimed territories. Gradually, discovery and symbolic annexation, termed by John Milton in 1655 as giving rise to an imaginarius titulus (imaginary title), (36) were replaced with the requirement to take actual, effective occupation of a territory. A similar approach had already been favored by Bartolus de Saxoferrato (see supra), who in turn had borrowed the concept from Roman Civil Law.
Eventually, the attempt of the two older colonial powers, Portugal and Spain, to secure their predominant positions and to prevent their younger counterparts from interfering with their possessions on the American continent and elsewhere failed. Instead, the view prevailed that only those territories where "they [colonial powers] actually settled and continued to inhabit" (37), could be claimed to belong exclusively to one power.
The French Age (Seventeenth-Nineteenth Century)
From the beginning of the seventeenth century onwards, colonial powers were increasingly of the view that sovereignty over territory could only be acquired by exercising effective control over those territories. Louis XIV of France argued, for example, with respect to the dispute over Cayenne with Spain in 1701 that the law of nations permitted the acquisition of sovereignty only through effective occupation. Similarly, the English Crown instructed her explorers "to take actual, effective occupation of the land" (38) and the Swiss jurist Emerich de Vattell (1714-1767) stated that symbolic annexation and discovery gave merely rise to an inchoate title, which had to be perfected by "full possession." (39)
The exact shape of effective occupation depended on the character of the territory, which was sought to be acquired. (40) Especially with respect to small, uninhabited islands such as Ramos (see supra) there will not have been a significant difference between symbolic annexation and effective occupation. With respect to larger territories such as islands that could actually sustain human life, more was certainly required. Usually no less than a settlement would have been necessary to protect a European power's title to the land. However, controversies as to the precise legal requirements at the time continue until the present day. Many contemporary territorial conflicts are rooted in unresolved, original claims to territory dating back to the seventeenth century or even earlier. (41)
The Anglo-Argentine dispute over the Falklands/ Las Malvinas islands, for example, revolves around competing exercises of control over the islands in the seventeenth and eighteenth century and whether or not the control exercised by Argentina prior to 1833 sufficed to confer sovereignty over the islands to Argentina so as to preempt subsequent British claims. (42) Another example is the most recent dispute between Taiwan, China, and Japan over the Senkaku Islands in the East China Sea. The issue in this case is whether or not the islands were terra nullius at the time of Japanese occupation or whether they had previously been under the control of the Qing Empire. (43)
The rationale necessitating effective occupation in the context of acquiring territory is the same as that underlying the practices discussed in the previous sections. The powers that invested most in their attempts to exercise control over one particular territory where the ones who had the best justification to claim the land. The only difference in the French Age concerned the degree of control required to perfect a title to a territory. While a promise to extend the papal realm would have sufficed in the late Middle Ages and symbolic annexation was enough to confer sovereignty during the Spanish Age, the French Age required the actual taking of the land, including in most cases the establishment of settlements. One of the most important factors responsible for this shift, apart from the general demise of papal authority due to the emergence of Protestantism, appears to be the increased number of colonial players amongst whom the newfound territories had to be divided. Originally, only Spain and Portugal had to share the world beyond Christian Europe. By the beginning of the nineteenth century, however, almost all larger Western European powers had their own colonies and had to find mechanisms to divide the world between themselves.
Another effect of the enlarged number of colonial powers was the powers' increased and acute awareness as to their conduct with respect to newfound territories. Originally, any convenient way of claiming a territory would have sufficed. Even a mark on a map would at times have been enough. However, towards the end of the eighteenth century the colonial powers' procedures became more formalized and the writings of scholars such as Vattell served as important guidelines for explorers. The report of the taking of Ramos Island even explicitly states that the island was taken in accordance with the requirements of the law. (44) It is thus clear that law influenced the behavior of the colonial powers to a considerable extent.
Some argue that there is a discrepancy between the requirements of international law and the actual conduct of states and that, consequently, international law is of little to no significance when one attempts to understand the behavior of states. However, it is hoped that this brief expedition into the history of the acquisition of territory by colonial powers was able to indicate that the conduct of colonial powers was shaped by more than traditional habits, mere convenience, or considerations of brute force.
It is, of course, undeniably true that the prescriptions of international law are often deeply rooted in the practices of states and are in that sense flexible to some extent. However, the historical accounts equally reveal that once a certain mode to acquire territory had been accepted, most states attempted to act in accordance with those accepted standards. (45) Similarly, we have seen that certain attempts to modify the requirements of the law in favour of a few states failed, and that Spain and Portugal were as a result forced to justify their territorial claims by other means.
Further, it should have become apparent that the rationale underlying the different modes to acquire territory did not change significantly. The idea that territory could only be acquired in return for services (the spreading of the realm of Christianity/conversion of native inhabitants), expenses (costly expeditions), or labor (involved in the discovery, symbolic annexation, or effective occupation) remained unchanged. Specific rituals then served to establish a unique link between the conquering power and the claimed territory and to put the other powers on notice as to the rightful ownership of the land at hand.
As such the starting position has at least in theory always been that every Christian power had an equal right to conquer and claim territory. (46) The question was, however, how one power could justify laying claim to a specific territory to the disadvantage of another power. This question remained the same throughout the three different time periods we reviewed, but the answers differed depending on the accepted mode of acquisition at a specific point in time.
Ever since the discovery of the world was completed at the beginning of the nineteenth century, international law regarding the acquisition of territory remained largely unchanged. However, the progressing exploration of space and the deep sea might soon cause the old question of how to divide newfound territories between different powers to resurface. At that stage historical accounts may well prove to be of very helpful guidance during our generation's struggle to identify the best answers to these old questions.
Valentin Jeutner (University of Cambridge)
(1) Joaquin Francisco Pacheco et al., Coleccion de documentos ineditos, relativos al descubrimiento ... de las antiguas posesiones espanolas de America y Oceania: sacados de los archivos del reino, y muy especialmente del de Indias (Madrid, 1871), 15:320.
(2) For a remarkable collection of state practice, see Arthur Schopenhauer Keller, Oliver James Lissitzyn, and Frederick Justin Mann, Creation of Rights of Sovereignty Through Symbolic Acts, 1400-1800 (New York: Columbia University Press, 1938); Patricia Seed, Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640 (Cambridge and New York: Cambridge University Press, 1995).
(3) The most bizarre example of a power's attempt to legitimize is certainly the Spanish resort to the now infamous requerimiento; see, e.g., S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (New York: Oxford University Press, 2004), 36.
(4) Seed, 179.
(5) Wilhelm Georg Grewe, The Epochs of International Law, trans. and rev. Michael Byers (Berlin: Walter de Gruyter, 2000), http://bvbr.bib-bvb.de:8991/F?func=service&doc_ library=BVB01&doc_number=008944595&line_ number=0001&func_code=DB_RECORDS&service_ type=MEDIA (accessed April 2, 2013).
(6) Ibid., 233.
(7) Alfred Verdross, Volkerrecht (Berlin: Springer, 1937), 66.
(8) The text of the Donation (Latin) can be found here: http://www.thelatinlibrary.com/donation.html (accessed April 2, 2013). Interestingly, the original authority of the emperor to exercise control over the undiscovered parts of the world appears not to have been questioned.
(9) Andre Vauchez, Encyclopedia of the Middle Ages (London: Routledge, 2001), 445; Johannes Fried, Donation of Constantine and Constitutum Constantini: The Misinterpretation of a Fiction And Its Original Meaning (Berlin: Walter de Gruyter, 2007).
(10) Note, however, that there is some debate as to the meaning of the term "islands," which might have been intended to refer to any territory not under the control of a Christian prince; see Grewe and Byers, 123.
(11) Nicholas of Cusa had already revealed that the Constantinian Donations were a forgery. Lorenzo Valla independently confirmed this thesis later in his essay De falso credita et ementita Constantini Donatione declamatio (1439/1440). See Nicholas of Cusa, Nicholas of Cusa: The Catholic Concordance (Cambridge and New York: Cambridge University Press, 1996).
(12) Grewe and Byers, 233.
(13) For excerpts, see Frances G. Davenport, European Treaties Bearing on the History of the United States and Its Dependencies to 1648 (Washington, D. C.: Carnegie Institution of Washington, 1917), 1:17.
(14) Ibid., 18.
(15) Ibid., 27.
(16) Guanahani was the first name given to the island where Christopher Columbus and his crew landed in October 1492. The group of islands to which Guanahani belonged was later renamed San Salvador and the exact location of the original Guanahani is nowadays disputed.
(17) Grewe and Byers, 234.
(18) Erich Staedler, "Die Westindischen Investituredikte Alexanders VI," Niemeyers Zeitschrift Fur Internationales Recht 50 (1935): 315.
(20) Note that the relationship between the Pope and the explorers was at times more akin to that between an overlord and a vassal; see Grewe and Byers, 231.
(21) Bartolus had questioned the Pope's authority to dispose of the world's territories as early as the fourteenth century and had argued instead that territory should belong to that power which exercised effective control over a given territory.
(22) William Camden, The Historie of the Most Renowned and Victorious Princesse Elizabeth, Late Queen of England (London: B. Fisher, 1630), 2:116.
(23) Island of Palmas Case, Scott, Hague Court Reports 2d 83 (1932), Perm. Ct. Arb. (1928), 2 U.N. Rep. Intl. Arb. Awards 829 (n.d.), United States Memorial, 1925, p. 53.
(24) Grewe and Byers, 252.
(25) Henri La Fontaine, Pasicrisie Internationale (Berne: Stampfli, 1902), 170-172.
(26) John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party, Together with Appendices Containing the Treaties Relating to Such Arbitrations, and Historical and Legal Notes (Washington, D.C.: Government Printing Office, 1898), 5:5043.
(27) Keller, Lissitzyn, and Mann, 148.
(28) C. C. A. Gosch, The Expedition of Captain Jens Munk to Hudson s Bay in Search of a North-West Passage in 1619-20, vol. 2 of Danish Arctic Expeditions (Cambridge and New York: Cambridge University Press, 2010), 10.
(29) Keller, Lissitzyn, and Mann, 57-58.
(30) Thomas James and Walter Andrew Kenyon, The Strange and Dangerous Voyage of Capt. Thomas James (Toronto: Royal Ontario Museum, 1975), 89.
(31) Fernandez de Navarrete, "Royal Letters Patent (cedula) of 8 June 1501," in Colleccion De Los Viages (1501): 3:86.
(32) Wyatt (Capt.), Sir Robert Dudley, and Abram Kendall, The Voyage of Robert Dudley, Afterwards Styled Earl of Warwick and Leicester and Duke of Northumberland, to the West Indies, 1594-1595 (London: Hakluyt Society, 1899), 27.
(33) Seed, 6.
(34) Grewe and Byers, 251.
(35) Extract from the Book of Dispatches from Batavia, reprinted in Richard Henry Major, Early Voyages to Terra Australis, Now Called Australia: a Collection of Documents, and Extracts from Early Manuscript Maps, Illustrative of the History of Discovery on the Coasts of That Vast Island, from the Beginning of the Sixteenth Century to the Time of Captain Cook (London: Hakluyt Society, 1859), 54-55.
(36) Grewe and Byers, 255.
(37) William Camden et al., Annales or, The History of the Most Renowned and Victorious Princesse Elizabeth, Late Queen of England: Containing All the Important and Remarkable Passages of State, Both at Home and Abroad, During Her Long and Prosperous Reigne (London: Benjamin Fisher, 1635), 225 (Covering year 1580); Charles Knight, The Penny Magazine of the Society for the Diffusion of Useful Knowledge (London: Charles Knight, 1833), 416.
(38) John Holland Rose, The Cambridge History of the British Empire (Cambridge: The University Press, 1929), 1:536; Grewe and Byers, 398.
(39) Emer de Vattel, Charles Ghequiere Fenwick, and Carnegie Institution of Washington, Le droit des gens ou principes de la loi naturelle: Reproduction of books I and II of edition of 1758 (Carnegie Institution of Washington, 1758), vol. 1, ch. 10, 207.
(40) Island of Palmas Case, Scott, Hague Court Reports 2d 83 (1932), Perm. Ct. Arb. (1928), 2 U.N. Rep. Intl. Arb. Awards 829 (n.d.), 840; Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island (France/ Mexico), Award  26 AJIL 390, 393-394 (n.d.); Legal Status of Eastern Greenland (Norway/Denmark), Judgment  PCIJ Ser. A/B No. 53 1, 46 (n.d.).
(41) And sometimes even earlier, see, e.g., Minquiers and Ecrehos (France/UK), Judgment  ICJ 47 (n.d.).
(42) Julius Goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History (New Haven: Yale University Press, 1927).
(43) Tao Cheng, "Sino-Japanese Dispute over the Tiao-yutai (Senkaku) Islands and the Law of Territorial Acquisition," Virginia Journal of International Law 14 (1974): 221.
(44) "... como mejor podia e de derecho debia", Pacheco et al., Coleccion de documentos ineditos, relativos al descubrimiento ... de las antiguas posesiones espanolas de America y Oceania, 15:322.
(45) The way in which the colonial powers implemented these standards differed to some extent on the colonial power's respective culture, and when and where a given territory was considered for acquisition. Consider, e.g., the Dutch-English exchange regarding Delaware Bay, Seed, Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640,
(46) See also Vattel, Fenwick, and Washington, Le droit des gens ou principes de la loi naturelle, 209. "A nation that seized more than it was capable of populating and cultivating thus violated the law of nature and natural reason. If every nation from the beginning had tried to lay claim to a vast land, only in order to live from hunting, fishing, and eating wild fruit, our globe would not be large enough for the tenth part of human being living there today."
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|Title Annotation:||Special Section: Sovereignty and World History|
|Publication:||World History Bulletin|
|Date:||Mar 22, 2013|
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