Memorandum handed to the Secretary of State, June 26, 1909.
The Secretary of State of the United States addressed to the King’s minister at Washington, on January 11 last, a note in which, on the occasion of the annexation of the Independent State by Belgium he reverts to the desiderata contained in the American memoranda of April 7 and 16, 1908.
The note transmitted by Baron Moncheur particularly expresses the Washington Cabinet’s desire to receive the renewed assurance that Belgium will discharge the obligations assumed by the Independent State of the Kongo in the Brussels convention of July 2, 1890. It immediately adds that this assurance is, moreover, in perfect accord with the views of the Belgian Government, the expressions already made by it in regard to its own purpose as a power signatory to the Brussels convention leaving no doubt in that respect. The very conclusion drawn by the American Government from the previous clear and formal declarations of the Belgian Cabinet as to the fulfillment of the duties placed upon it by the aforesaid convention, seems [Page 410] to make a repetition of those assurances unnecessary. Furthermore, the King’s Government would not understand how they could be questioned.
Turning to the colonization system of the Kongo, the American note criticizes the rules governing the granting of concessions. It expresses the opinion that the granting of concessions to various private corporations and the inclusion of a part of the remaining territory into the domain of the State had the practical effect of excluding the greater part of the Kongo territory from the possibility of purchase and of hampering the execution of the provisions of the declaration of 1884 of the treaty of January 24, 1891, between the United States and the Kongo State and of the Brussels convention of July 2, 1890.
In reply to this assertion the King’s Government confines itself to saying that it is about to offer for sale or lease on July 2 next, a certain number of state land tracts in the Kongo, intended for agricultural establishments or for Belgian and foreign commercial houses. These tenders, announced as early as February 16 last in the official bulletin of the colony, afford adequate evidence that there will be no scarcity of land for foreigners to purchase in the Kongo. This likewise applies to missionaries. Applications for land filed by six Protestant associations, viz, the Wescott brothers, the Kongo Babolo Mission, the Baptist Missionary Society, the Swedish Missionary Society, the American Baptist Missionary Union, and the Christian Foreign Missionary Society, have been admitted by the minister of colonies.
Moreover, the Belgian Government formally disputes the allegations that the existing land grants preclude its selling vacant lands within the granted regions to third parties. The right of the Government to sell within said regions tracts of land for the use of colonists, traders, or missionaries was asserted by the chief of the cabinet at the session of the Chamber of Representatives of July 2 last, the Government being at liberty to exercise that right as it sees fit.
The Washington Cabinet next sets forth its personal ideas concerning the property rights of the Kongo people. “In a country,” says the American note, “where there has been no ownership of land in severalty by the natives, but only communal ownership of rights over extensive tracts, to allot to the Government and its concessionaires ownership in severalty to all the lands not already owned and held in severalty by the natives is in effect to deprive them of their rights to the soil.”
The question of native ownership is not so simple as it appears to the American Government. It seems to confound the political territory of the tribes, that region over which their chiefs exercised their authority, with the land which is really owned by the members of the tribe jointly.
If it were claimed that the whole area of their political territory formed the communal property of the tribes, the whole of the Belgian Kongo would be turned into native property, since the political territory of each tribe adjoins that of its neighbor, and the colonial government would be denied the right to dispose of vacant lands, no matter how small in area. Such a claim would run counter to all legal principles, as well as to the actual conditions existing in equatorial Africa.
[Page 411]A few lines further on the American note ascribes the basis of the former Independent State and the foundation for the authority it exercised to the treaties made by the International African Association with the natives Those very treaties recognize the association’s right to dispose of unoccupied land.
But it is necessary to revert to the above-quoted passage and note the sentence which reflects the opinion of the Government of the United States respecting the ownership rights of the natives. “To allot to the Government and its concessionaires ownership in severalty to all the lands not already owned and held in severalty by the natives is in effect to deprive them of their rights to the soil.” In expressing this sentiment the American note takes no account whatever of the constituent legislation governing the land system of the Kongo.
This legislation, antecedent to annexation, lays down certain principles by virtue of which the natives’ rights to the soil are respected. One of those principles, as formulated in the ordinance of July 1, 1885, is that “no one has the right to dispossess natives of the lands occupied by them.” Another principle established by the decree of September 14, 1886, is that lands occupied by natives under the authority of their chiefs continue under the local customs and usage.
The effect of these principles, which have not been modified by the subsequent legislation of the State of Kongo, is to secure the natives in the enjoyment of the lands they occupy, whatever be the form of such occupancy, whether in severalty or in common.
Under their ruling the Independent State did make over or grant certain areas of its domain. As a result the transfers or concessions did not and could not affect any but vacant lands, the only ones of which the state could dispose, and the third parties, purchasers of concessionaires, were, like the state itself, bound to respect the rights, both joint and several, of the natives to the soil. Any encroachment on those rights would be considered as void by the Belgian Government, because effected in violation of the principles sanctioned by legislation prior to such concessions or transfers.
The American note further says that the Government of the United States was glad to know that since the American memoranda of April 7 and 16, 1908, the Government of Belgium had expressed its purpose to extend the area of the lands to be reserved to the natives for their cultivation and traffic pursuant to the royal decree of June 3, 1906.
The decree, in fact, does not set any limit to the area of lands that the executive power may assign to native communities outside of those over which they exercise effective rights of occupation. This is what enabled the Belgian Government to carry it out in the most liberal spirit.
It held that the assignment of lands to native communities should be guided by both the actual circumstances of the present and the requirements of the future—that is to say, that in determining the area of land to be allotted to each tribe, the number of constituent members, the processes of cultivation suited to a primitive people, and the necessity of insuring to the utmost the future development of native communities should all be taken into consideration. Under the guidance of this rule the King’s Government is now carrying out the decree of June 3, 1906, in the regions under private exploitation as well as in the national domain.
[Page 412]It has had occasion to satisfy itself that these principles, applied in accordance with a method identical with that adopted in the other European possessions in the conventional basin of the Kongo, will bring about a solution of the question of native lands in the Belgian Kongo more favorable to the interests of the natives than in the generality of colonies in equatorial Africa.
But the King’s Government proposes to reserve to itself the absolute exercise of the right to determine, in accordance with these principles, the area of native lands as has been done by its neighbors in Africa, England, France, and Germany, and as has been done by all the sovereign states in other parts of the world where the aborigines of races different from the black likewise held certain rights to the soil on which they dwelt.
Six months have elapsed since the transfer of the possessions of the Independent State to Belgium became an accomplished fact. The American Government, which has also had heavy colonial tasks to perform, especially since receiving the Philippines from the hands of Spain, will doubtless find that such a period of time is insufficient to put into final shape decisions that can only be reached after long preparation and meditation.
The Parliament at Brussels, with which the King’s Government on assuming charge of the colony made the most formal engagements, showed itself firmly resolved to encourage and aid it; but, on the other hand, it fully realized at the time when the first colonial budget was under consideration that an undertaking of such magnitude as that assumed by Belgium could not be accomplished offhand and that its realization would involve transitions requiring cautious treatment. It is indeed impossible for a government, conscious of its duties and responsibilities, to consent to the alteration of established conditions without being in position to replace them with new conditions, as it would thus take the risk of causing serious perturbations from which the whole colony would suffer. Any precipitate or ill-digested measure could but compromise the success of the mission of civilization inherited in Africa by the people of Belgium.
Complete harmony prevails between the cabinet and Parliament, both being upheld by every organ of public opinion in the aim to develop colonization in the Kongo in accordance with the interests of civilization and with international obligations. The Government of the King will evidence its intentions by acts which it shall perform in its untrammeled independence. The new administration has resolutely applied itself to the task and its activity has already been manifested in practical measures. For instance, the minister of colonies unhesitatingly concurred in a resolution adopted by a unanimous vote of the Chamber of Representatives which declares that it is expedient to substitute in the nearest possible future the free enlistment of laborers for their impressment on the score of public utility in the construction of the Great Lakes Railway, and that the chamber is convinced of the necessity of bringing about, without delay, tangible ameliorations in the condition of the laborers on the force, looking notably to a reduction in the term of service, a limitation of the zone of enlistment and of the local quota of the force, a guaranty to the the men so enlisted of compensation equal to that of free labor in the region, and the payment of such compensation in money.
[Page 413]In the last part of its note the American Government expresses a wish to know whether the King’s Government, by the statement that Belgium is prepared to fulfill all the engagements made with the United States by the declarations of April 22, 1884, intended to confine the rights of the United States to the declarations of the International Association which preceded the sovereign Kongo State or equally recognizes the conventional rights conferred upon them by the treaty concluded with the Independent State in 1891.
It has never been intended by the King’s Government, since the cession of the Kongo to Belgium, to deny to the United States the benefit of the contractual arrangements which it had secured by the international acts of 1884 and 1891. The King’s Government has already once declared in the pro memoria note of January 29, 1908, and it has since repeated in its subsequent communications to the American Government, that it did not lose sight of the international obligations of the Kongo State.
However, as stated by the minister for foreign affairs at the session of the Chamber of Representatives of April 15, 1908, all the obligations assumed by the Independent State can not survive the annexation. This is invariably the case after the cession of one State to another. The principles and practice of international law leave no room for doubt on this point, as Secretary of State Sherman so clearly stated in his letter to the minister of Japan after the annexation of the Hawaiian Islands. As regards the provisions of the convention of January 24, 1891, new arrangements, which the Brussels cabinet stands ready to negotiate with the American Government, are imperative, notably concerning the recourse to arbitration regulated by a special article. Since the convention was signed arbitration has been made the subject of new international engagements on the part of both Belgium and the United States. The memorandum of July 12, 1908, took that standpoint in considering the conditions under which Belgium would eventually accept the resort to arbitration.
Indeed, the Belgian Government had given its attention to averting the difficulties which might, after resorting to arbitration, flow from divergent interpretations, in the several territories which constitute the conventional basin of the Kongo, of the general principles laid down in the Berlin act and reproduced in certain conventions concluded by the Independent State, whereby a differential treatment, antagonistic to the said acts, would be created to the detriment of one of the territories.
For that reason it said to the American Government in its memorandum of July 12 “that it should be understood that recourse to arbitration would not be had unless the other powers holding possessions in the Kongo basin agreed to become parties to the case or to accept the interpretation given by the award of the arbitrator.” It is still of opinion that such an adhesion of the powers concerned is highly desirable, that it is absolutely necessary, and that it should precede the resort to arbitral proceedings.
It is self-evident that a proposal of arbitration could only relate to acts of the new colonial arbitration in order to be accepted by the Belgian Government. The interpretation given by that Government in commercial matters to the conventions concluded with the United States could alone afford occasion, after the failure of ordinary diplomatic [Page 414] means, for recourse to that mode of procedure with the previous authority of the legislative bodies and all the usual reservations inserted in all the treaties relative to arbitration.
The Cabinet of Washington appears to believe that instead of resorting to arbitration the Government of the King would reserve to itself the right to arrive at a direct understanding among all the powers holding territory in the conventional basin of the Kongo with a view to a settlement of all points in dispute. The Brussels cabinet merely said in its memorandum of July 12 that there is, in its opinion, a better means than arbitration to solve contentious questions which might arise in that part of Africa, namely, a direct understanding of the powers possessing colonies therein. This course would offer the immense advantage of insuring the general observation and a uniform interpretation of the clauses of the act of Berlin. But the King’s Government confines itself to suggesting and commending this course; it does not assume to impose it.
The convention of January 24, 1891, secures to American citizens the right to erect religious edifices, to organize and to maintain missions in the Kongo, and they have largely availed themselves of that right. The Belgian Government has afforded to religious missions facilities for the purchase of land required for the development of the work of evangelization, by refraining from subjecting them to the public auction prescribed by the present law in cases of sale or lease of domanial land. But while it thus displays toward them the most confiding disposition, it expects that, for their part, the missionaries of all creeds will hold it their paramount duty to observe the laws and respect the public authorities of the country whose hospitality they enjoy. It would be highly gratified to receive the assurance of the friendly cooperation of the Government of the United States toward inducing the American citizens residing in the missions of the Kongo fully to meet this expectation.