Despite the prominence of the concept of anarchy in international relations theory, there have been several attempts to explain how hierarchically structured systems work in international relations, why they rise and fall, why they take on the specific forms of stratification that they do, and what their impact is on broader international outcomes such as war and peace. Some realists, for example, argue that inequalities in states' capabilities lead to the emergence of “hierarchies of prestige,” and that great powers play a special role in direction of international affairs, often with a stabilizing effect.1
On the idea of a “hierarchy of prestige,” see Gilpin 1981; on the role of great powers, see Clark 1989. Most realists implicitly accept the existence of some kind of hierarchy in international relations by concentrating on the activities of great powers at the expense of “middle” and “small” powers; on this tendency in realist thought, see Holbraad 1984. Peace researchers also argue that inconsistencies between status and actual capability are a cause of conflict; see Wallace 1973.
Weber 2000 stresses the importance of transaction costs to international hierarchy. For related approaches see Milner 1993, Lake 1996 and 2003, and Cooley 2005.
See Wight 1977; Bull and Watson 1984; Gong 1984; Der Derian 1987; Onuf 1989; Neumann and Welsh 1991; Watson 1992; Doty 1996; Grovogui 1996; Wendt and Friedheim 1995; Buzan and Little 2000; Keene 2002; Salter 2002; Bain 2003; Dunne 2003; Hobson and Sharman 2005; and Donnelly 2006. On symmetrical identities (enemy, rival, friend) as the basis for “cultures of anarchy,” see Wendt 1999; and see also Martin 1992 for a parallel analysis of the distinction between symmetrical and asymmetrical interests in rationalist international relations theory.
My purpose here is to assess these different ways of thinking about international hierarchy through a case study of the treaty system that the British constructed during the first half of the nineteenth century as part of their effort to abolish the slave trade. This particular case has been chosen because it offers an opportunity to see how the British conducted their international relations with an unusually wide range of partners upon a single issue. In order to suppress both the supply of and the demand for slaves, as well as to deal with third parties involved in the carrying trade, the British had to make treaties with an extraordinary number and variety of states, including other great powers, such as France and the United States; weaker, and sometimes only recently independent, maritime states in Europe and the Americas, such as Brazil, Haiti, the Hanseatic Towns, Portugal, and Tuscany; “Native Chiefs” on the western coast of Africa; “Arab Chiefs” in the Persian Gulf; and Muslim rulers of prominent slave-trading states on the eastern coast of Africa, such as the Sultan of Muscat.4
There is no single published collection of all the treaties. Hertslet 1840 is the most comprehensive published source; a set of papers printed in 1892 for the use of the United Kingdom's Colonial Office (CO 879/35) also contains a relatively full set of the African treaties. There are numerous studies of British treaty-making with one or a few other powers (such as Corwin 1967; Bethell 1970; Nwulia 1975; Beachey 1976; and Kielstra 2000); Miers 1975 is the widest-ranging survey, but even she looks only briefly at the wording of the earlier African treaties. Grewe 2000 is outstanding on international legal history during the period, but, for the slave trade, he concentrates almost exclusively on the treaties with European and American powers. Other legal studies—Fischer 1950; and Nanda and Bassiouni 1972—confine themselves to a mere handful of the major agreements.
Because all these treaties were made at roughly the same time and for roughly the same purpose, it is possible to see clearly how their terms varied depending on who the contracting parties were.5
This comparative element is largely absent from the otherwise excellent historical studies of treaty-making with non-European rulers in Alexandrowicz 1967 and 1973; Jones 1982; Gong 1984; Green and Dickason 1989; Mainville 2001; and Keal 2003. The present study also adds another empirical dimension to Anghie 1999, while broadly reinforcing his argument.
Of course, a single case study does not help to make comparisons between this and other hierarchical systems in international relations,6
For wider-ranging typological exercises, see Lake 2003; Cooley 2005; Hobson and Sharman 2005; and Donnelly 2006.
The main alternative approach employs diplomatic representation and participation in international congresses as a proxy for international status: see Singer and Small 1966; Bull 1984; and Strang 1991.
My main point is that this particular instance of international hierarchy was to a large degree socially constructed. Admittedly, the case does lend considerable empirical support to realist arguments about the importance of the unequal distribution of material capabilities: very strong maritime states (France and the United States) were able to win a privileged position for themselves within the treaty system, and, of course, the unfortunate African “Native Chiefs” were in a position of weakness relative to Britain, which made it possible to discriminate against them in the first place. But realists face problems in explaining why it was only weak African rulers who suffered, while weak European and American states continued to receive comparatively generous treatment, even when some of them, notably Portugal and Brazil, showed a marked lack of enthusiasm for abolition and were effectively forced to negotiate their treaties at gunpoint.8
Krasner 1999, 106–9, makes much of British coercion here as evidence for the underlying importance of power politics to the abolitionist crusade, and in that respect he makes a fair point, but he does not then go on to discuss why the terms of the treaties eventually imposed on Portugal and Brazil were so much better than those agreed with African states.
For example, Temperley 1991 on the calamitous Niger expedition. From an institutionalist perspective, Weber 2000 offers a detailed study of the importance of such communications problems in the context of nineteenth-century international relations.
See Robinson and Gallagher 1961; and Alexandrowicz 1973. Independently of the struggle against the slave trade, a few protection treaties were made by the British in the period from about 1820 to 1850, but they were extremely wary of linking protection to the antislave trade treaties, usually for reasons of thrift. A protection clause was written into the original draft of the agreement to be offered to African chiefs on the Niger Expedition but was deliberately omitted from the final version of the agreement, being reduced to an additional article to be included at the negotiator's discretion. See Lord John Russell to Governor Doherty, 30 September 1840, CO 267/163; and see also the draft treaty and final agreement form used on the Niger Expedition, CO 2/21.
The main reason why African, Arab, and Muslim rulers got a worse deal than even the weakest and most reluctant European or American state was because the British saw the former as “barbarians,” while they saw the latter as belonging to the “family of civilized nations.” As the British themselves said, they varied the terms of the treaties they made because they thought it was appropriate to do so “to mark the distinction between the agreements with barbarous Chiefs and the international compacts of Civilized States.”11
Colonial Office Minute by James Stephen, 6 September 1841, enclosed in Gov. Huntley to Lord John Russell, 24 April 1841, CO 87/25.
Treaty-Making, Civilization, and Barbarism
It is worth taking a moment to ponder the apparently insignificant point that the British decided to create a network of treaties in order to outlaw the slave trade. There were other possible paths to their goal. For example, they secured a broad moral condemnation of the trade at the Congress of Vienna, and several abolitionists wanted to go further by unilaterally declaring slavers to be pirates and therefore subject to an acknowledged universal jurisdiction. But this route was not an easy one. When the case of a captured French slaver, Le Louis, came up before the British Courts of Admiralty in 1817, Lord Stowell firmly stated, “Be the malignity of the practice what it may, it is not that of Piracy, in legal consideration,” and he insisted that any attempt at suppression
must look to the legal standard of morality; and upon a question of this nature, that standard must be found in the Law of Nations, as fixed and evidenced by general and ancient and admitted practice, by Treaties, and by the general tenour [sic] of the Laws and Ordinances and the formal transactions of civilized states.12
As John Dodson, the British government's Law Officer, later reported, “the Right to search and detain … upon the High Seas in time of Peace must be acquired by Treaty.”13
John Dodson to Viscount Palmerston, 30 January 1836, United Kingdom's Foreign Office (FO) Papers, 83/2347.
The fact that Stowell and Dodson took for granted the importance of treaties as setting the “legal standard of morality” is indicative of a significant change that had worked its way through international legal thought during the eighteenth century. Leading sixteenth- and seventeenth-century jurists, such as Francisco de Vitoria or Hugo Grotius, had typically imagined a global legal order governed by a single, universal code of natural law, within which specific groups of peoples might develop their own volitional laws for themselves, but which was nevertheless held together by the all-embracing unity of the law of nature, whether understood theologically, rationally, or through quasi-empiricist enquiries into “human nature” or the “state of nature.”14
On the changing character of natural law thinking, see Alexandrowicz 1967; and Tuck 1987. I have discussed these intellectual developments at greater length in Keene 2002 and 2005.
For example, Vitoria 1991, 289.
To say that early modern jurists conceived of the code of natural law in universal terms is not to say that that code operated indiscriminately or without advantage to Europeans. For a start, natural lawyers often used the term “barbarians” as a pejorative description of certain peoples, such as the indigenous inhabitants of the Americas. “Barbarians” were often excluded from the scope of natural law and dismissed as so wild or savage that they were more beasts than men; some thinkers even revived the Aristotelian concept of the “natural slave,” which gave barbarians a place in the natural order of things but relegated them within that context to a subordinate, and in some respects subhuman, position.17
Less negatively, barbarians were often seen as peoples living in a condition of primitive simplicity, but who still possessed the moral and rational faculties that made their participation in the natural law possible: Vitoria and Grotius both took this view.18 On this account, barbarians had more or less the same rights and duties under natural law as Christians, although Christians possessed additional rights and duties in their relations with one another, on the basis of their shared commitment to the revealed truths of scripture. Despite conferring natural rights on barbarians, this still allowed considerable space for European expansion and dominance. A fairly standard, albeit controversial, late medieval doctrine held that the Pope was the judge of barbarians with respect to their breaches of natural law, which inevitably gave Christians a special role in the arbitration and enforcement of the code, and thus a superordinate position in international relations with non-Christians.19Muldoon 1979.
Thanks to jurists such as Cornelius Bynkershoek, Johann Jacob Moser, and, perhaps most famously, Georg Friedrich von Martens, a different doctrine gained ground during the eighteenth century that made treaties the principal source of the law of nations, and made the history of treaties the crucial authority for determining legal obligations.21
The best account is probably still Nussbaum 1947, 135, 142–48, 163–77; see also Kennedy 1986; and Koskenniemi 1989. On von Martens's role, see Alexandrowicz 1967, 158–62 and 1974–75; and Jones 1982, 7.
Grotius 1995, 222.
Again, what might appear to be an inclusive or egalitarian position could conceal a more sinister colonial purpose: by accepting that non-European rulers originally possessed the same natural rights as Europeans, and by admitting the former's competence to make treaties, it became possible for those natural rights—to ownership of territory or control of production and trade, for example—to be ceded to European powers through regular treaties, whether cheaply or dearly bought.23
Courts sometimes retrospectively interpreted such agreements (which often imposed frustrating limits on subsequent colonial expansion) as belonging to a special class of international instrument, with less weight than a treaty proper, although such arguments were not always successful: Mainville 2001, 34–60.
Alexandrowicz 1967 is a seminal analysis of the classification of East Asian rulers' sovereignty along these lines. Jones 1982 describes a similar practice in British treaties with Native Americans, at least during the period from 1763 to 1768, and possibly even until 1775; but especially during its latter years she explains how this treaty system was undermined by private acquisitions of territory, symptomatic of a loss of governmental control over settler-Native American relations. (On the specific question of British views on the international personality of indigenous rulers in North America during the mideighteenth century, see Jones 1982, 19–20, which largely confirms Alexandrowicz's analysis of the position of East Asian rulers; Grovogui 1996, 46–47, is critical of Alexandrowicz on this point but does not offer much hard evidence.) The Barbary States had at least some form of international personality in the sense of treaty-making competence, but this was always somewhat marginal and became noticeably more precarious in the early nineteenth century: Mössner 1972. Sub-Saharan African rulers may always have been placed in a more subordinate position, but treaty-making with them was rather haphazard (prior to the antislave trade treaties) and the evidence is so fragmentary that it is hard to come to a definite conclusion on this point.
To understand why this did not happen, one needs to appreciate another intellectual development that was roughly simultaneous, perhaps not coincidentally, with the emergence of positivist jurisprudence: the rise of the modern idea of “civilization.” Although the terms “civility” and “barbarism” have a much longer history, readily traceable to ancient sources, “civilization” itself is a word of more recent provenance: Norbert Elias finds the first literary evidence for the French term civilisation as late as the 1760s.25
Elias 1978, 38. Translations of legal texts sometimes conceal the novelty of “civilized” or “civilization” as terms in common usage: for example, the eighteenth-century international lawyer Christian Wolff made a distinction between peoples who were “doctae et cultae” as opposed to those who were “barbarae et incultae” (Wolff 1972, 131). It is by no means wrong to translate the former term as “civilized,” as is sometimes done, but “learned and cultivated” is a more literal, if more cumbersome, translation, and one that does not run such a risk of importing additional meanings that Wolff neither intended nor, perhaps, could have imagined.
Locke 1967, 289.
See Robinson 1929. The dictionary was first published in 1755. “Civilisation” first appeared in the French Academy's dictionary in 1798 (Zeldin 1977, 6). According to Grewe 2000, 445, the first appearance of the word in international law was at the Congress of Vienna.
One of the most important features of how this new idea was used was that, although civilization implied the control of nature, Europeans seldom contrasted this social condition with the concept of a “state of nature,” as had been the case in earlier political and legal theories built around the distinction between the state of nature and “civil society.” Although some philosophes did use the contrast between civilization and nature to extol the natural virtues of the “noble savage,” a more common line of argument was to make a contrast between “civilization” and “barbarism.” The lasting importance of this move was that it permitted the more elaborate sociological cataloguing of multiple levels of human advancement, a virtual league table within which different societies could be ranked in terms of their development, usually with Europeans at the top. The belief thus arose that the various forms of human society could be studied geographically and anthropologically, rather than historically or hypothetically.28
Embryonic forms of this position may be found in Grotius's or Locke's view of America as a living example of the state of nature, but it really became popular in the eighteenth century. Ferguson 1995 is a classic statement of this position; and Berry 1997 is a good commentary.
Cited in Marshall and Williams 1982, 93.
This was crucial to the way in which positivist jurisprudence eventually developed.30
On the importance of the colonial encounter to the development of legal doctrine in this period, see Anghie 1999.
Alexandrowicz 1974–75.
This new way of thinking about the positive law of treaties and the unique role of the “family of civilized nations” in generating international legal rules had only begun to come together toward the end of the eighteenth century; it was gradually making itself felt on international legal practice in the first half of the nineteenth century. As it did so, it raised difficult questions about how to put the theory into practice, and the exact status of “barbarous” rulers, especially their treaty-making competence, was a source of controversy and confusion throughout this period.
British Treaty-Making Against the Slave Trade
The antislave trade treaty system is best analyzed according to a tripartite division. First, there were treaties with other European and American powers; these were further divided into three subgroups, as will be explained next. Second, there were treaties with Muslim rulers, whom the British initially treated as equal partners, but whose status steadily declined during the first half of the nineteenth century. Finally, there were treaties with African “Native Chiefs,” whom the British government regarded as “barbarous,” and whose “engagements” were therefore somewhat questionable as elements of the law of nations, although even here there were elements of parity in some of the very early, often less carefully drafted, treaties.
Treaties with European and American Powers
Beyond the broad statement of principle contained in the Vienna Declaration and elsewhere, Britain had three distinct kinds of treaty relationship with European and American powers. One group of treaties established a mutual right of search and a set of mixed courts of jurisdiction; another group also established a mutual right of search but arranged for the arbitration of cases to be conducted under national courts; and finally, two treaties—with the United States and with France—did not provide for a mutual right of search but created a mutual obligation to maintain naval squadrons off the coast of Africa in order to prevent slaving.
The first treaties exclusively devoted to the delegitimization and suppression of the slave trade that Britain made were with Portugal and Spain in 1817; a virtually identical treaty was signed with the Netherlands a year later.32
For the treaties, see Hertslet 1840, Vol. 1, 381–91 (the Netherlands), Vol. 2, 83–93 (Portugal), and Vol. 2, 273–309 (Spain); for a contemporary overview of the early treaties and the system they were intended to create, see Viscount Castlereagh to His Majesty's Commissioners, 20 February 1819, BFSP, Vol. 8, 25–28.
The standard formula in these treaties was that the contracting parties “mutually consent that the ships of their Royal Navies … may visit such merchant vessels of the two nations, as may be suspected, upon reasonable grounds, of having slaves on board for an illicit traffic; and in the event only of their finding such slaves on board, may detain and bring away such vessels.”33
Hertslet 1840, Vol. 1, 385.
Ibid., Vol. 1, 385, 387; see also Vol. 2, 87 and 281.
The promise of reciprocity, indeed, was one of the key elements of British treaty-making practice in its dealings with European and American powers. The British, along with everyone else, recognized that equality was a legal principle rather than a factual condition, and that their naval supremacy represented a potential threat to both the free commerce and the sovereign pride of the nations with which they were dealing.35
King 1944, 411.
Viscount Castlereagh to Charles Stuart, 21 February 1818, BFSP, Vol. 8, 299.
Charles Stuart to Viscount Castlereagh, 2 March 1818, BFSP, Vol. 8, 306.
Kielstra 2000 is an excellent study of Franco-British relations here.
Other states had similar concerns. The new republics in Latin America, whose recognition by Britain was unquestionably facilitated by their initial hostility toward slavery,39
were anxious about making “permanent commitments to a strong naval power, who might harm her commerce and outrage her sovereignty.”40King 1944, 405.
Grewe 2000, 561.
The election of a liberal government in France in the early 1830s created a further opportunity for British treaty-making and provided what proved to be a brief opportunity to establish a new kind of treaty regime. This was based on an 1831 Convention according to which French and British warships had a “mutual right of search” with respect to vessels flying each other's flag.42
Hertslet 1840, Vol. 4, 112.
Ibid., Vols. 5 and 6.
In short, then, with the exceptions of the United States and France—both of which refused to allow a mutual right of search, but which eventually accepted a mutual obligation to maintain antislaving squadrons off the West African coast—by the middle of the nineteenth century treaties were in place with virtually all European and American powers under which British warships might visit, search, and detain vessels on the high seas suspected of slaving. This treaty system embraced countries as diverse as Russia, Spain, the Hanseatic towns, Brazil, and Haiti. Despite this immensely wide range, however, there were relatively few variations in the language and norms contained in the treaties. With the exception once again of France and the United States, the only really significant difference was in the arbitration process, depending on whether cases were to be tried at mixed commissions or national courts. Especially in view of the real disparities in naval power, diplomats took pains to ensure that all the treaties stressed the equal status of the contracting parties and highlighted the reciprocal nature—in theory at least—of the right of search. The practical fact that, say, Sardinian warships were unlikely to appear in the seas off the western coast of Africa and begin inspecting British merchant vessels was not permitted to interfere with the normative principle that they had the right to do so if they desired. In this respect, every member of the “family of the civilized nations” was identical; and it was in this crucial respect that they differed from the unfortunate peoples and rulers who found themselves outside that family.
Treaties with Muslim Rulers
Although the Vienna Declaration of 1815 and the Portuguese and Spanish treaties of 1817 marked the real beginning of the British effort to abolish slave-trading by treaty, some of the earliest treaties containing antislaving provisions were not made with European or American powers, but with Muslim rulers on the northern coast of Africa: the “Barbary States.” Before the nineteenth century, these were not really antislave trade treaties as such, because they were usually concerned with more general issues about peaceful relations, freedom of trade, and related privileges; a typical sentiment was that the subjects of each state “shall treat one another with all possible respect and friendship.”44
This formula was repeated in numerous treaties, such as the 1662, 1675, and 1716 treaties with Tripoli; or the 1682, 1686, 1703, 1716, 1729, and 1800 treaties with Algiers.
BFSP, Vol. 1, 734; see also the 1662 treaty with Tripoli, BFSP, Vol. 1, 712.
Ibid., 741.
Ibid., 743.
Ibid., 357.
The year 1822 saw the first specifically antislave trade treaty with a Muslim ruler, made at Zanzibar with the Imam of Muscat.49
Hertslet 1840, Vol. 3, 265–67.
Ibid., 266–67.
Ibid., Vol. 6, 578.
Ibid., Vol. 7, 819.
Ibid., Vol. 8, 733.
Ibid., 794–802.
Ibid., Vol. 9, 557.
The broad thrust of these treaties was similar to that of the treaties made with European and American powers: the British wanted to gain a right to search suspect vessels on the high seas and so to use their superior naval power to prevent the trade in slaves. However, at the same time, the antislave trade treaties with rulers such as the Imam of Muscat reveal important differences from the various classes of conventions made with European rulers. Arrangements governing the arbitration of captured vessels, for example, were quite different. The earlier treaties relied on Muslim rulers to enforce antislaving laws and to punish their own subjects themselves, but later ones gave the British a much more extensive jurisdictional role. According to the 1844 treaty with the Sultan of Johanna, for instance, all ships seized by the British were “to be sent to the nearest or most convenient British Vice-Admiralty Court for adjudication.”56
Ibid., Vol. 8, 733.
In keeping with this gradual extension of British jurisdiction, and the resulting contraction of the jurisdiction of Muslim rulers, the single most important distinguishing feature of these antislave trade treaties, in comparison with those agreed with European and American powers, was the gradual disappearance of the principles of reciprocity and equal respect from the former. In the earlier treaties with Muslim rulers, the language was fairly generous and stressed the equality of the contracting parties. This has already been noted as a feature of the seventeenth- and eighteenth-century commercial treaties with the Barbary States, but it also applies to early nineteenth-century treaties with rulers in eastern Africa. An 1817 commercial treaty with Madagascar, for instance, begins with an assertion of “mutual confidence, friendship and brotherhood,”57
Ibid., Vol. 1, 354.
Ibid., Vol. 5, 612, 616–17.
The British version permitted their warships to seize all Arab vessels carrying slaves to any port outside the Imam's territory; the Arab version granted a right for “the seizure of all vessels laden with slaves bound for Christian countries.” (Hertslet 1840, Vol. 3, 267.) See also FO 96/29/9 for a copy with translation of the 10 December id/1843 treaty with the Sultan of Johanna: according to the English version the Sultan would “authorize British Cruizers to seize all vessels belonging to his subjects that may be found with slaves,” which in the Arab version became the much more modest permission to carry out “an inspection for the purpose of discovering dealing in slaves.”
The Imam of Muscat, in other words, appeared in both the 1822 and 1839 treaties as an equal contracting partner with the British, with few obvious differences from the rights enjoyed by European or American states; subsequent agreements were to erode that status dramatically. The 1845 agreement, imposed on the Imam to address British frustration at his neglect of his treaty obligations to put down the trade, begins with a much less egalitarian preamble. Treaties with European and American powers typically began by asserting the parties' equal desire to put down the trade, but in the 1845 agreement with Muscat only the British sovereign is portrayed as “earnestly desirous that the export of slaves from the African dominions of his Highness the Sultan of Muscat should cease,” while the Imam is said to be acting “in deference to the wishes of Her Majesty and of the British nation, and in furtherance of the dictates of humanity.”60
Hertslet 1840, Vol. 7, 818–19.
Ibid., Vol. 9, 557.
Treaties with African “Native Chiefs”
Although the effort to cut off the African slave trade at its source only really began to gather steam in the 1840s, the British had by then been making treaties of one sort or another with African rulers for some time. These treaties were not directed against slaving as such. They were generally concerned with the cession of territory, the guarantee of commercial privileges, and the maintenance of friendly relations between “Native Chiefs” and the British colonies at Sierra Leone, the Gambia, and the Gold Coast. Although rare, there were one or two mentions of the principle of reciprocity in these early treaties. An 1823 treaty with the King of Mapoota, for example, opened with a declaration of “perfect friendship … on terms of reciprocal benefit,” and made provision that neither party would interfere with the other's jurisdiction over its own subjects; this generous treatment, however, must be set against the fact that under the terms of the treaty the King of Mapoota placed his people under British protection.62
23 August id/1823, FO 97/432.
14 April 1823, CO 879/35.
Having decided to attack the export trade in slaves, the British did not immediately embark on a systematic program of treaty-making with African rulers, but rather began in an ad hoc manner, with treaties made by individual naval captains or colonial officials along the African coast, often with little direct control or authority from the Foreign Office and sometimes repudiated after the event. Toward the end of the 1830s, however, the Foreign Office began to take more of an interest in treaty-making with African rulers. In 1839 they sent out a plea for copies of any treaties made with African chiefs during the previous thirty years held by the Colonial Office and the Admiralty.64
18 November and 25 November 1839, FO 84/300.
Bandinel's original draft treaty was modeled on antislaving agreements with Muslim rulers such as the Sultan of Muscat.65
CO 2/21, 533–37. All further references in the paragraph are to this copy of the draft treaty. Newbury 1965, 150–53, gives a final version of the draft agreement, but only after the Foreign and Colonial Office amendments described below had been made.
The Queen's Advocate approved Bandinel's draft in terms of its validity within the law of nations, but Russell and especially Palmerston had problems with the way in which it was framed. They suggested that the elaborate treaty prepared by Bandinel be reduced “into the form of a simple agreement … and stripped therefore of all diplomatic language and expressions which might not be well-understood by the barbarous and semi-barbarous tribes with which the Expedition will have to negotiate.”66
James Stephen to Bandinel, 26 December id/1839, FO 84/300.
desired that the compacts to be made with the African chiefs should be described as “arrangements or agreements,” or by some other word which would exclude them from the class of Diplomatic Conventions. The distinction is not verbal or trivial. It means to reserve to the Secretary of State for Foreign Affairs his own exclusive power of negotiating Treaties, and it is also meant to mark the distinction between the agreements with barbarous Chiefs and the international compacts of Civilized States.67
Colonial Office Minute by James Stephen, 6 September 1841, enclosed in Gov. Huntley to Lord John Russell, 24 April 1841, CO 87/25.
In part, then, Palmerston's concern was a constitutional one: since most of the “agreements” with African rulers were to be negotiated by agents reporting to the Admiralty or the Colonial Office, by refusing to label them “treaties,” he could uphold the principle that treaty-making was the exclusive preserve of the Foreign Office. It is clear, however, that Palmerston's view was also determined by a sense of the boundaries of civilization, and by the belief that international relations with “barbarous Chiefs” ought to proceed according to a different logic of appropriateness from that which obtained within the “family of civilized nations.”
Bandinel was therefore asked to reduce his original draft to its essentials and simplify its language, in order to take account of the parties at whom it was aimed. There were some interesting by-products from this decision. One result, for example, was that stipulations regarding proper payment of debts were made less stringent because, as Bandinel observed, “on that subject the natives … are likely to insist on Reciprocity; and it would not do to make the condition applicable to them more stringent than could be enforced on British subjects”; he added that he had also proposed “precautionary means for preventing the natives from seizing and detaining British subjects under any pretence whatever.”68
Bandinel to Stephen, 10 April 1840, CO 2/21.
Bandinel to Stephen, 4 January 1841; and see also the amended copy of the draft agreement, both in CO 2/21.
Although Palmerston's view carried the day in terms of the form of the agreement that was sent out with the Niger expedition, his position was not entirely undisputed within the Foreign and Colonial Offices. Although he had probably not reflected on the subject in great detail, Bandinel's original draft shows that he lacked an awareness of the need to make the distinction between civilized and barbaric peoples in so stark a way as Palmerston demanded. Some observers, moreover, maintained that the distinction itself was faulty, and that “the doctrine of the incapacity of the negro race is literally exploded.”70
Report from Sir John Jeremie to Lord John Russell, 4 March 1841, CO 267/163.
Jeremie to Russell, 4 March 1841, CO 267/163.
Minute by James Stephen, 27 October 1841, CO 87/27.
Sir Thomas Fowell Buxton to the Marquis of Normanby, 20 April 1839, CO 2/21.
The Foreign Office's painstaking attempt to purge the agreement used on the Niger expedition of anything that might be considered diplomatic language reveals the importance that the British attached to the vocabulary used to describe their treaty partners. In addition, their choice of words here clearly shows that the African chiefs were being placed into a different category from European or American states, and were also being treated as distinct from the Muslim rulers on whom Bandinel's original model treaty was based. The development of these agreements reveals a decline in the status of African chiefs yet more precipitous than that suffered by the Muslim sultans of eastern Africa. In the early 1820s, although the evidence is somewhat fragmentary, British treaties with African rulers appear to have employed language not dissimilar to that used in the earlier agreements with the Barbary States, prominently including terms of friendship and reciprocity that are unexceptional in the broader context of early-nineteenth-century British treaty-making in general. Within two decades, however, the British were denying the competence of African rulers even to make a treaty as understood in the law of nations.
Explaining the Structure of the Antislave Trade Treaty System
How might different theoretical approaches explain these variations in British treaty-making? A good starting point is to acknowledge the importance of power politics to a sort of “hierarchy of prestige.” Notwithstanding the general presumption of reciprocity within the “family of civilized nations,” there were significant differences in the treaties that the British made with France and the United States, as opposed to how other states were treated. With respect to the latter, the British were quite prepared to use force to compel submission to treaties on the terms that they favored: the pressure on Portugal to accept the incorporation of the equipment clauses into a new round of treaties is a good example of the importance of force to the establishment of the treaty regime, and the contempt with which the British regarded Portuguese objections about the inviolability of sovereignty is clear evidence of the low prestige, in a realist sense, of that state. France and the United States were a very different matter. Here, the British were prepared to accept a much looser treaty regime. It is hard to see why the British did this other than out of respect for the greater power and prestige of these states, and their willingness to exert that power to prevent the British from acquiring maritime domination.
Power politics might also explain the relatively harsh treatment of “barbarians.” One characteristic shared by all “barbarous rulers” was “pettiness”: they lacked the power with which to offer any serious challenge to the British government. This, indeed, was an integral part of the definition of “barbarism” with which most Europeans operated in the nineteenth century: uncivilized peoples were all “poor and feeble,” John Stuart Mill argued, because of their “incapacity of cooperation” in pursuit of large-scale social, economic, and military projects.74
Mill 1882, Vol. 1, 191.
Hobson and Sharman 2005, 87.
Institutionalist models of international hierarchy provide a better explanation as to why these states were treated in such different ways. They see hierarchical arrangements as the product of states' desires to reduce the costs of their transactions and to deal with external threats more efficiently than they could in isolation: generally speaking, the higher the transaction costs, and the more threatening the problem at hand, the more likely it will be that states will accept a relatively binding hierarchy, one that leaves fewer “rights of residual control” to subordinate actors. Although this line of argument may help to explain several features of the treaty system, the most important point for now is that it can address the gap in realist theories noted above, namely the differences in the treaties with weak “civilized” states and weak “barbarians.” In dealings with the former, the British could rely on relatively advanced technologies for communication and had less uncertainty about the political decision-making processes at work within the respective states. Perhaps the British may also have had less uncertainty about the effectiveness of national judicial processes for the prosecution of slavers, although they frequently worried about the lack of official zeal for the antislaving cause in countries such as Portugal and the Netherlands. Overall, transactions with African rulers were more difficult, more costly, and less certain in their outcomes. As institutionalists argue, these factors would work to make a more binding treaty system with African rulers much more attractive to the British, and this may well explain why they sought to lock African and, eventually, Muslim rulers, into a more restrictive kind of treaty regime, which left the latter with fewer residual rights over the actual business of putting down the slave trade. Relatively backward technologies, greater uncertainty about treaty enforcement, and greater heterogeneity would all contribute to high transaction costs and make a restrictive hierarchy more likely.
However, one difficulty that remains for the institutionalist position is to explain why treaties with African rulers typically became more restrictive over time, rather than less. At the very beginning of the antislave trade treaty-making process, and in earlier treaties made during the seventeenth and eighteenth centuries, African and Muslim rulers were typically offered more generous terms, often quite similar to British agreements with other countries in Europe. In contrast with what the institutionalist model would lead one to expect, African rulers lost status within the hierarchy as relations between them and the British government were placed on a more regular footing, as the latter gained more and better information than before about the structure of African society and politics.76
Law 1995 on the unfolding of Anglo-Dahomian negotiations.
It seems that inequalities in capabilities alone cannot explain how super- and subordinate roles were assigned within this international hierarchy, nor were transaction costs and the possible benefits of a new governance regime the only factors that determined how tightly subordinate actors were constrained within the system. It is difficult to explain why British treaty-making against the slave trade developed as it did without taking account of the change in international legal doctrine that had earlier taken place, when the universalist assumptions of natural law theory were jettisoned in favor of the more Eurocentric bias that accompanied the shift to positivist jurisprudence, and especially the emergence of the new idea of “civilized” nations as uniquely competent to make the treaties that were now becoming the primary source of international law. Broadly speaking, then, the case provides empirical support for a constructivist and poststructuralist view of international hierarchies when, as Wendt and Friedheim put it, “an important feature of such systems is … the negotiation of the terms of each actor's identity.”77
Wendt and Friedheim 1995, 720.
This conclusion is strengthened by the fact that these were the very terms that the British used to explain to themselves how they should make the treaties. To be sure, the British noted the “pettiness” of the native chiefs, but this point was made much more rarely than the repeated insistence on their “barbarousness.” In addition, the British seldom made explicit comment on the difficulties involved in negotiating and enforcing the treaties as a reason for changing their terms and language. If the British were thinking about the treaty system in terms of transaction costs, they were doing so in a remarkably indirect and inexplicit way. Moreover, their disdain for the African rulers even led them, perversely enough, into a double bind that threatened to make the regime weaker than it might otherwise have been. By calling African rulers' international personality into question, the British undermined the very rights that they were hoping to obtain: if the chiefs were not competent enough to possess sovereign prerogatives, they also could not give them away to the British. The notion that these agreements were not proper “treaties” was therefore awkward to maintain, and in practice government officials frequently dignified them with that label in their external correspondence.78
Staveley's report in House of Lords (23 April 1849) is a noteworthy example; see also Phillimore 1879. Similar questions of international law were raised by British treaties of cession with African rulers and agreements with the “Native States” of India: see Westlake 1894, 87; and Alexandrowicz 1973, 30–31.
Conclusions
The case studied here lends empirical support to what one might broadly describe as a constructivist or poststructuralist view of how hierarchical systems develop in international relations. But, within the context of that research program, it also adds to the historical understanding of the complex process through which the hierarchy of “civilized,” “semi-civilized,” “barbarous,” and “savage” peoples was constructed. Treaty-making is a somewhat neglected part of this story. As noted earlier, a lot of work has been done on the development of the ideas of civilization and barbarism in political and legal thought, and there is, of course, a similarly impressive literature on the encounters between European and non-European peoples and the subsequent development of European empires. A study of how treaty-making was changing during this period is vital to understanding how these ideas and practices affected the normative structure of international society.
Treaties are certainly not the only way in which norms develop in international relations, and, as I have shown, it is important to be aware of the changing cultural and doctrinal contexts within which treaty-making operates. But treaties are still valuable indicators. They are acknowledged to be an important part of the process of “norm cascade,” which typically requires “emergent” norms to “become institutionalized in specific sets of international rules and organizations.”79
Finnemore and Sikkink 1998, 900.
Vincent 1990, 55.
The antislave trade treaty system is particularly useful in this respect, because it embraced so many different kinds of actors, in treaties that are directly comparable with one another since they all address the same issue and were made at more or less the same time. It thus provides a good measure of how the scope of international society was changing during the early nineteenth century, which graphically illustrates Charles Alexandrowicz's perceptive thesis that, during the early years of positive international law, the once universal family of nations posited by natural lawyers actually “shrank,” before starting to expand again in the later nineteenth and twentieth centuries.81
Alexandrowicz 1967.
But the case studied here still poses puzzles for constructivist, poststructuralist, and other approaches that stress the importance of the cultural context within which international relations develop. For example, it is interesting, contra Alexandrowicz, to compare this process of the “shrinking” of international society in terms of the exclusion of African rulers with an area where the society of states was simultaneously expanding: the new Latin American republics. Here, new states were accepted by the British as sovereign equals with perhaps surprising alacrity and enjoyed the norms of reciprocity and mutuality that were generally understood to characterize international relations within the charmed circle of the “family of civilized nations.” In part, this difference may also suggest the need to qualify claims about the importance of a “racial discourse” to the civilization/barbarism distinction.82
Although some of these new states were dominated by white settlers, many were racially more mixed than typical European societies, and some, notably Haiti, had a very different profile altogether. Racist judgments were unquestionably part of the hierarchy of “civilized nations” and “barbarous peoples,” but status within it depended on a complicated mixture of social, economic, cultural, and judicial indicators as well.Another intriguing puzzle for constructivist work in this area is that this contraction of international society was so closely bound up with what is nearly always understood, not without justification, as a universalistic, cosmopolitan, and egalitarian moment in the development of international norms: the abolition of the slave trade.83
See Ray 1989; Nadelmann 1990; Keck and Sikkink 1998, 41–51; Crawford 2002, 159–90; and Finnemore 2003, 68–69. Note also the criticisms of this view in Doyle 1996, 37–38; and Kaufmann and Pape 1999.
