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. 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. 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. The New World was an area ‘where force could be used freely and ruthlessly’.

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. 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, 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. Even in cases of cession, however, non-Europeans were at best regarded as having private law ownership of land; never sovereign control over territory. The colonial title to territory was always seen as original. 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’. 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.