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Colonialism as a Legal Relation

This type of colonialism was also a legal relation. Here, I’ll quote from Halsbury’s Laws of England, ‘International Law and Foreign Relations: 7. Territory’ (2018) vol 61. Of course, other countries may have different laws about their control over foreign places, but the following explains how Britain sees the process of acquiring colonies.

Law (made by the colonial powers) can grant a colonial power ‘sovereignty over land, sea, and air territory’. Such sovereignty implies that, e.g. the colonial power has a ‘better claim to [the colonial territory] than any other state’.

Today, English / international law proposes that ‘[t]itle to territory may not be changed by resort to the use of armed force’. Regardless of whether this is true today (lawyers are very good at wrangling over the meaning of words), it was not true during the colonial era. That said, colonies were not only gained by direct violence (although violence always lurked in the background).

There are several ways, today, by which one state may legally gain title (sovereignty) over land. These methods are relevant to a discussion of colonialism because they are used by states to claim that their title to foreign territories (modern-day colonies) is still good title.

The methods are:

• ‘acquisition by occupation’ (where the land was otherwise ‘empty’ – a racist concept that does not treat indigenous people as fully human or ‘civilised’);
• ‘acquisition by accretion (where land changes naturally, e.g. an island rising out of the sea);
• ‘acquisition by cession’ (which means, ‘the peaceful transfer by one state to another of sovereignty over the territory, usually by treaty, or by way of gift, purchase or exchange’);
• ‘acquisition by prescription’ (where one state gains title because it has been administering an area over which it mistakenly thought it had title);
• ‘acquisition by creation of new states’ (where a group of powers agree to carve up an area between them, such as Israel or any of the other countries in the Middle East or Africa with perfectly straight borders).

Whichever method, the state claiming sovereignty must continuously and effectively control the area over which it claims to have sovereignty. (These rules also govern e.g. the fact that ‘Spain’ is the Iberian peninsula except for Portugal, the Basque region, and Gibraltar, but we’re only concerned here with ‘foreign territories’ such as Britain’s claim to Gibraltar or Malta.)

Acquiring Colonies

During the colonial era, English lawyers accepted five ways of gaining sovereignty over an area:

• Settlements (like Canada, the US, and Australia, where British people settled and took English law and custom with them);
• Ceded territories (called ‘cession’, above);
• Conquered territories;
• Protectorates and Protected States;
• Trust territories.

I shan’t go into the details of all these methods, except to say that Britain acquired its colonies in lots of different ways. In many cases, British soldiers would murder the indigenous people and build their own homes in the new land (a settlement); or British merchants would (consensually) buy or build a trading post, trade with the indigenous peoples, and insist that English law governed the contracts (a ceded region); or British officials would enter into a treaty with one tribe to defeat another tribe and divide the land between them (a ceded region).

Example: Ghana and the Gold Coast

Going back to the examples, above, Britain sided with the Fante against the Asante (Ashante) to expand its power in the Gold Coast. After the Asante wars (at least seven wars), the Fante won, became the dominant indigenous force in the region, and ceded territory to the British. The law calls this ‘peaceful’, because sovereignty was given by treaty, even though it was backed by violence.

The British only had legal sovereignty over limited areas of the Gold Coast, but if the indigenous wished to trade internationally, they would have to go through the British, and accept English law. So colonialism does not mean total domination; but just enough domination for the colonial power to get what it wants from the colony – resources, workers, etc.

Britain was not the only European power on Africa’s West Coast. The British Crown and British merchants got a strong foothold on the Gold Coast by buying up Dutch, Portuguese and other European forts in the region. French and Germans also had colonies in what is now Ghana. After World War II, it was thought (probably by Britain, but not by the French, Germans, or Ghanaians) that Britain was the best country to rule the area.

The indigenous people definitely did not agree. Led by Kwame Nkrumah, they staged a general strike, overthrew the British government, and created a new independent government and state of Ghana (the name of a nearby, but older / extinct African kingdom). The British then enacted the Ghana Independence Act 1957, confirming that Ghana would self-rule.

This shows how colonialism is a legal relation, as it was created by law and had to be dissolved by law. (Of course, at this point, the Ghanaians probably did not care whether English law accepted their independence.)

To sum up, colonialism involves a legal relationship by which one country lawfully exercises control over other territories. (I am not making any moral argument, here. Just because something is lawful or legal does not mean it is moral.)