The Entanglement of Sovereignty and Property in International Law: From German Southwest Africa to the Great Land Grab?

Abstract

Although sovereignty and property had emerged as clearly separated legal concepts at the time of German colonial expansion, with the acquisition of sovereignty requiring either the conclusion of treaties with other sovereigns, or the effective occupation of territorium nullium, their relationship was a lot closer in actual colonial practice. For the German colonial administration, ownership and control of private property in land was fundamental not only for the economic exploitation of the colony, but for acquiring territorial sovereignty in the first place. To a considerable extent, the effectiveness of Germany’s occupation derived from its control over property through the acquisition of property and the establishment of a property regime. The incremental land grab achieved a level of control, which Germany’s insufficient military deployment would not have achieved alone. Recognizing this role of property in the acquisition of sovereignty, one might feel inclined to support neo-marxist theories about property rights as a vehicle ensuring the original acquisition of the means of production (as well as the surplus value created by them). Hence, German colonialism in Southwest Africa looks like a thoroughly capitalist project. Intriguingly, the property regime faithfully reflected the specifically German variety of 19th century capitalism, which assigned a strong role to government intervention and control. Nevertheless, at closer inspection, the property regime established in Southwest Africa reveals an irritating fuzziness, which belies such simple explanations. This fuzziness consists in a series of loopholes, contradictions, and fundamental ambiguities pervading property law up until the confiscations following the Herero and Nama uprising. This observation is highly puzzling given that the Germans spared few efforts to establish a highly legalistic colonial regime. The paper argues that the fuzziness ultimately results from, and boils down to, the impossibility of establishing law in the context of a violent colonial conquest. Resorting to psychoanalytical theories of law pioneered by Jacques Lacan, one might understand the colonial property regime as a symbolic order that hides the brutality emanating from our imaginaries. Its fuzziness is the “damn’d spot” that does not wash off, a reminder of the contradiction inherent in the attempt to justify the unjustifiable, legalizing the illegal, in short, of the systemic violence pervading colonialism. Along this line, the article argues that the 1904-1907 genocide constitutes the culmination of insoluble tensions reflected in the property regime. Colonial law thus reveals itself as a field of intense struggles. While one should not overlook the character of property law as an instrument of colonization, it also reflects many of the contradictions of colonialism, of the attempts to justify the unjust. Tragically, these tensions still pervade the land question in today’s Namibia, only to be exacerbated by contemporary land grabs.