1. Introduction
The imperial turn in the history of international law since the 2000s has brought renewed attention to the nineteenth century as a formative period in the development of the contemporary international legal order. Early works focused on the intellectual history of an exclusive circle of jurists specialized in international law.Footnote 1 However, more recent scholarship has exposed a gap between the doctrines presented in the writings of eminent jurists and the ‘peripheral practice’ of international law on the ground.Footnote 2 Here, practice is used in contrast to authoritative, abstract statements of law by central state authorities or eminent jurists. It is described as peripheral because it often took place in extra-European settings and far from the congresses and other summits that have long been recognized as shaping international law. Peripheral practice thus includes legal acts, interpretations, arguments, and decisions, particularly by mid- and low-level officials.Footnote 3
Among the richest sources for studies on the peripheral practice of international law are treaties between Western and non-Western polities. The pioneering work of Charles Henry Alexandrowicz on the topic in the 1960s and 1970s cast the nineteenth century as a transitional period when the basis of legal relations between Western and non-Western nations shifted from equality to hierarchy. Published as it was in the era of decolonization, Alexandrowicz’s work offered a historical precedent for efforts to establish a post-colonial international order based on principles of equality and reciprocity.Footnote 4 In recent years, as international lawyers once again reckon with the legacy of imperialism in their discipline, scholars have revisited historical treaties between Western and non-Western nations. Through close studies of these treaties, as well as the correspondence surrounding their conclusion and enforcement, scholars have challenged doctrinal accounts of non-Western peoples and their place in Western international law in the nineteenth and early twentieth centuries. Within this scholarship, treaties between European and African polities have garnered particular attention. Their sheer number and their role in shaping the present-day borders of African states explain the sustained interest in Euro-African treaties.Footnote 5
Through their research, scholars such as Isabelle Surun, Mamadou Hébié, and Inge Van Hulle have convincingly refuted many common generalizations about Euro-African treaties in older scholarship. Notably, they have shown that European officials generally recognized treaties with Africans as valid legal instruments and that the transfer of territorial sovereignty was far from the sole purpose of these treaties.Footnote 6 These scholars have also highlighted African agency in Euro-African treaty-making while acknowledging Europeans’ pervasive recourse to force and coercion.Footnote 7 In light of their findings, the notion that African leaders who signed treaties with European powers were usually ignorant of their contents, passively accepted European conditions, or willingly signed away their people’s rights for trifles, is no longer tenable.Footnote 8 Cases of ignorance, fraud, deception, and corruption did occur in the nineteenth century. However, these circumstances must be proven with respect to particular treaties rather than presumed.Footnote 9
Despite stressing African agency, these scholars have primarily analysed treaties as instruments of Western international law or of the developing imperial legal practice of European powers. Ironically, their work thus results in depicting Africans as having consented to their integration on unequal terms into a Western-dominated international normative order. Aware of this shortcoming, Surun, Hébié, and Van Hulle all point to the difficulty of recovering African perspectives due to a dearth of sources.Footnote 10 Hébié notably affirms that ‘[a]s far as West African political entities are concerned, their reports and other internal documents regarding their agreements with colonial powers are difficult, if not impossible, to find a century after the facts’.Footnote 11
In this article, I take up the challenge of recovering African perspectives by proposing a new method of reading Euro-African treaties in African contexts. I use this method to study ratification in treaties between France and polities in the Western Sudan. This region of West Africa forms a belt that extends from the Atlantic coasts of modern-day Mauritania, Senegal, Gambia and Guinea-Conakry to the middle course of the Niger River in modern-day Mali. It is delimited to the north by the Sahara Desert and to the south by West Africa’s tropical forests. Ultimately, I highlight the contrasting insights generated by analysing Franco-Sudanian treaties as instruments of distinct inter-polity normative orders, one in the Western Sudan and the other in Europe.
Scholars of Euro-African treaties have long noted inconsistencies in European approaches to ratification. European authorities sometimes ratified treaties years, even decades, after they were signed. They also occasionally treated unratified treaties as binding and in force. Scholars have generally explained away these inconsistencies as strategic choices or the results of administrative blunders.Footnote 12 I offer a different answer based on re-reading the documentary record on nineteenth-century treaty-making in the Western Sudan across regional contexts. According to the norms prevailing in Europe at the time, the French head of state generally needed to ratify a treaty before it could become legally binding for France. However, the authorities of French Senegal and Western Sudanian powers required ratification by the governor of Senegal rather than the French head of state to recognize a treaty as binding. As a result, at least through the 1880s, French authorities followed distinct ratification practices, depending on whether they sought to claim rights under Franco-Sudanian treaties against a Western Sudanian or a European power. It is in this bifurcated approach to ratification that the two faces of Franco-Sudanian treaties – one Western Sudanian and the other European – emerge. Ultimately, bifurcation reflects the transposition of Franco-Sudanian treaties across autonomous inter-polity normative orders in the Western Sudan and Europe.
The article proceeds in four sections. In Section 2, I outline the methodological approach undergirding my rereading of Franco-Sudanian treaties. In Section 3, I introduce the geographic and political context in which Franco-Sudanian treaties were concluded. In Section 4, I present my main argument: that, in the nineteenth century, different rules governed the ratification of treaties in European and Western Sudanian international relations and French officials adapted their treaty-making practices to satisfy the rules of both regional orders. I conclude with thoughts on the applicability of this method more broadly to historical treaties between Western and non-Western nations.
2. Imperial treaties, peripheral practice, and contextual readings
Recent scholarship on Euro-African treaties has demonstrated the relevance of peripheral practice across methods of legal-historical inquiry, spanning both ‘external’ and ‘internal’ approaches. Inge Van Hulle, for example, situates her work within the tradition of ‘external’ approaches, which study law within its social context and its time, taking into account political, economic, and cultural factors. She aims to analyse law as a discourse, highlighting its structures, limitations, and internal contradictions.Footnote 13 From this perspective, the challenge of applying legal rules among peoples with vastly different cultures and political traditions reveals contradictions and constraints that were easily overlooked from European salons. Isabelle Surun also stresses the ‘chaotic character’ of imperial legal discourse. However, she pushes further by drawing on the political, economic, and cultural context of Euro-African interactions to trace the evolving meaning of juridical concepts found in treaties.Footnote 14 Rather than highlighting the external factors that shape the law’s evolution, Mamadou Hébié adopts an internal point of view and describes his analysis as ‘positivist’. This approach focuses on applying basic rules of the legal order regarding sources of law and legal authority to identify the prevailing norms. Hébié identifies sovereign consent as the basis for binding international rules. As he astutely observes, an ‘internal’ approach based on consent as a source of law entails considering both the European and African understandings of treaties, and the practice of international law in imperial settings provides an authoritative source to do so.Footnote 15 Despite their distinct methodological approaches, these scholars thus agree that constituting a proper juridical and historical understanding of Euro-African treaty-making requires ascertaining the perspectives of African treaty parties.Footnote 16
Yet, Van Hulle, Surun, and Hébié all struggle to engage seriously with African understandings of treaty terms. They rely predominantly on Western juridical concepts and norms to interpret the legal consequences of treaties. In contrast, they use African perspectives, usually drawn from historical scholarship, primarily to provide general background.Footnote 17 They then employ this background to show whether African parties were generally capable of understanding and consenting to treaty terms.Footnote 18 Thus, these scholars turn to African perspectives to answer whether African parties consented. However, they mainly use Western understandings to determine what African parties consented to. This approach largely presumes as settled the meaning and legal consequences of treaties. It implies that terms in Euro-African treaties can be interpreted according to their generally accepted meaning in Europe at the time. This often-unstated presumption impedes a particularized inquiry into what an African party consented to and foresaw with respect to a specific treaty.
To overcome this obstacle, I adopt a method for reading treaties that is contextual, intertextual, and translingual. For a contextual reading, I interpret treaties through the social, historical, and cultural background that informed their conclusion. I draw not only on the extensive historical literature on Euro-African colonial encounters as previous authors have done, but also on more recent scholarship in African history and Islamic studies. This recent scholarship uses varied sources from West Africa, including oral histories and written sources in Arabic and other regional languages. In doing so, it brings to light the political and diplomatic traditions of the Western Sudan and their roots in both regional and Islamic thought and practices.
Following Isabelle Surun, I also analyse treaties intertextually. I draw context directly from treaties themselves, reading them alongside other Franco-Sudanian treaties. I also read treaties as embedded within a record of correspondence, draft treaties and other legal instruments that elucidate how terms and concepts are used between treaty parties.
I further extend this generative approach by adopting a translingual perspective.Footnote 19 I not only compare the French and Arabic texts of treaties and diplomatic correspondence, I also scrutinize markers of translation and transcription from the other languages of the region.Footnote 20 Rather than approaching different copies of treaties as interchangeable vessels carrying identical content, I take them as differentiated records of the ‘social life’ of treaties, records bearing the marks of a diplomatic agreement’s evolution and transmission between textual and oral forms and across languages. Acts of translation and transcription were often obscured by writers, copyists, and publishers, but they were also sometimes memorialized purposefully to evince the authenticity of a document and its contents. As such, this reading method strives to attend to the processes of negotiation, translation, and transcription. I contend that attention to these processes is essential to reading Euro-African treaties in context.
A second challenge faced by scholars of Euro-African treaties reflects a broader methodological problem in studies of peripheral practice. Research into peripheral practice inevitably unearths contradictions in the practice of international actors or between practice and doctrine. Scholars have often presumed that the contradictions between the understanding and practice of international law within Europe and in imperial settings result from ignorance, pragmatic adaptation, and other extra-legal factors.Footnote 21 I propose another view: that these contradictions reflect the distinct rules governing international affairs in autonomous normative orders. In short, contradiction is not a defect, it is a design feature.
I use the phrase autonomous normative orders to describe communities of international actors engaged in a dense cluster of interaction amongst themselves – interactions that give rise to a geographically bounded set of common practices and norms.Footnote 22 To be autonomous, these communities of interaction need not be isolated from each other. On the contrary, each community is often tied to others through commercial, religious, migratory, and other links. However, a community of interaction enjoys relative autonomy in that links to other communities are generally weaker than links among community members. Moreover, community members do not necessarily apply the full set of community norms to their interactions with outsiders. The most elaborate inter-polity normative orders feature a set of professionals, such as diplomatic agents and advisors, who are trained in the community’s diplomatic practices and norms and apply these practices and norms in relations among member polities. It is in this sense that I argue that distinct inter-polity normative orders existed in Europe and the Western Sudan.
Ultimately, my conclusions do not rest on newly discovered archival material. Instead, I draw on readily available primary sources published in print or online. The insights I present flow, in part, from introducing to legal scholarship on the ‘peripheral practice’ of international law sources from West Africa’s rich Arabic-language documentary record. While previously cited in historical scholarship, these sources have been largely overlooked by legal scholars. Just as importantly, these insights also result from a different reading of familiar sources, one that seeks to understand Euro-African treaties in both European and African contexts.
Indeed, we should interpret Euro-African treaties not merely as products of imperial legal imaginations but also as instruments of African diplomacy. This is not to say that Africans faced no material and structural constraints in defending their interests and autonomy against Western imperial forces. Interpreting Euro-African treaties in their African context shows instead where exactly those constraints lay. Constraints that have long been imputed to treaties themselves result in fact from an external cause: the removal of treaties from their original interpretive context and their subjection to a distinct and increasingly hegemonic mode of interpretation that rendered African legal arguments inaudible.
3. The political geography of the Western Sudan in the nineteenth century
For most of the nineteenth century, the French administration in Senegal was largely confined to two islands on the Atlantic coast. These were Saint-Louis, the colonial capital located at the mouth of the Senegal River, and Gorée, an island facing the Cape Verde Peninsula, the westernmost point of the African mainland where the city of Dakar now stands. From their enclaves, colonial authorities established relations with neighbouring polities belonging to two main cultural groups. Regions north of the Senegal River were controlled primarily by polities dominated by southern Saharan peoples who spoke an Arabic dialect known as Hassaniyya (see, e.g., Trarza and Brakna in Figure 1). These peoples were commonly referred to as ‘Moors’ in Western languages but they called themselves ‘bayḍān’ or ‘whites’ (hereinafter Baydan). Meanwhile, south of the river lay Wolof-dominated polities that had once been united within an empire (see, e.g., Kajoor and Walo in Figure 1). Upriver, on the southern bank of the middle Senegal, lay a region known as Futa Toro whose primary inhabitants, the Futanke,Footnote 23 spoke the Pulaar language and belonged to the broader FulaniFootnote 24 cultural group.Footnote 25
Figure 1. Map of the Western Sudan c. 1889Footnote 26
Over time, the Senegalese administration expanded its military presence to the upper Senegal River, in what is today far Western Mali. This region, populated primarily by Mande-speaking peoples, was organized into groups of culturally integrated autonomous city-states that had once formed united polities (see, e.g., Xaso and Bambuk in Figure 1). From the 1850s to the 1880s, the upper Senegal region was a meeting point between the zones of influence of French Senegal and its greatest regional rival, the Umarian Empire based in Segu (Ségou), on the middle Niger. From Segu, Umarian authorities came to administer a vast but often fragmented territory from the upper Senegal to the middle Niger. The empire’s population was diverse, including Baydan, Fulani, and various Mande-speaking groups. The Umarian Empire was established in the wake of a revolutionary religious movement led by the Futanke religious scholar Umar Saidu Tall (in Arabic, Shaykh al-Ḥajj ʿUmar bin Saʿīd al-Futī).Footnote 27 His was one of numerous Islamic reformist movements headed by Fulani intellectuals that led to the establishment of Islamic theocracies across the Central and Western Sudan, from Lake Chad to the Senegal River valley.Footnote 28
As this short sketch shows, Franco-Sudanian treaties were concluded among a culturally and politically diverse group of polities spanning a vast region. Despite this diversity, the Western Sudan was historically a region of dense interaction forged through centuries of commercial, social, and cultural exchange. Indeed, for periods between 1200 and 1600 of the Christian Era the region had been united under common rule within sprawling empires spanning from the Atlantic coast to the middle Niger.Footnote 29 These historical links meant that French officials could draw on their experience in the Senegal River valley to guide their interactions with Sudanian authorities further inland. Indeed, French Senegal and Western Sudanian polities relied on a small corps of African polyglots to serve as diplomats, advisors, interpreters, translators, and scribes in their diplomatic relations. Familial, educational, and professional networks tied these diplomatic agents to each other. Moreover, they often served the leaders of multiple polities over the course of their careers.Footnote 30 The shared intellectual and professional background of diplomatic agents allowed them to overcome cultural and political differences within the region and ultimately contributed to the coherence and autonomy of the Western Sudanian normative order. As argued in the next section, the shared background of these African diplomatic agents in regional and Islamic diplomatic practices also shaped the patterns of Franco-Sudanian treaty-making.
4. Ratification and international relations across autonomous normative orders
In early 1888, the French government accelerated preparations for what it anticipated to be consequential and intricate negotiations with Great Britain. The two rival colonial powers were expected to discuss the delimitation of their respective possessions and protectorates in West Africa. In support of its claims, the French government planned to present dozens of treaties signed by the colonial administration of French Senegal with representatives of polities throughout West Africa. However, there was a pressing problem: most of these treaties had yet to be formally ratified by the French president.Footnote 31 Concerned about the possible invalidity of these treaties, the French minister of foreign affairs pressed the minister of the navy and the colonies to help collect copies of all the relevant treaties and prepare for their ratification. The minister of foreign affairs stressed the urgency of the task with bureaucratic euphemism. In light of the forthcoming negotiations, he wrote, it would be ‘prudent’ to ‘regularize’ the situation by ratifying the treaties without delay.Footnote 32
Officials at the ministry of the navy and the colonies were caught off guard. While the ministry had been duly notified of the conclusion of the treaties, it struggled to find copies in its archives. As a result, ministry officials had to request certified copies from the government of French Senegal.Footnote 33 Moreover, most of the treaties had been concluded several years earlier, and it seemed no one had thought to request their ratification until preparations began for the negotiations with Great Britain.Footnote 34 Indeed, French authorities had already executed their obligations under certain treatiesFootnote 35 and published many of them in official collections.Footnote 36 For his part, the minister of foreign affairs did not intend to have the president ratify all the treaties signed by French imperial agents in West Africa. He focused squarely on ratifying those treaties that reinforced French territorial claims against Great Britain. However important their subject matter, the treaties which tended to limit or throw doubt unto French claims were dutifully ignored.Footnote 37
The attitude of French authorities presents a contradiction. On the one hand, the foreign minister treated presidential ratification as crucial; he suggested that without it, France’s treaty-based territorial claims were vulnerable to a British challenge. On the other hand, colonial officials in Paris and in Senegal seemed to act as if presidential ratification was superfluous; they implemented and enforced treaties in the Western Sudan without bothering to have the president ratify them. Historians and legal scholars who have studied nineteenth-century European treaty practice in Africa have tended to attribute contradictory attitudes toward ratification to a mix of extra-legal factors: strategic prudence, deception, ignorance, and even bureaucratic incompetence. For example, historian of diplomatic relations between France and the Umarian Empire Yves Saint-Martin maintains that French and Umarian authorities enforced their unratified treaties strategically. He suggests that the two parties thus reserved the option to discard these treaties whenever they no longer served their interests.Footnote 38 In her study of British treaty practice in West Africa, legal historian Inge Van Hulle casts European attitudes toward ratification as resulting as much from incompetence as from self-interest. She notes that, due to administrative confusion, British officials were unable to establish a definitive list of ratified treaties for most of the nineteenth century. She further argues that African parties often treated unratified treaties as binding either because they did not fully grasp the notion of ratification or because British officials never notified their African counterparts that the British government had refused ratification.Footnote 39
Analysing Franco-Sudanian treaties in regional context leads to a different conclusion: that the rules governing ratification in Franco-Sudanian relations were simply different to those prevailing in inter-European diplomacy. The long history of cultural, economic, and diplomatic exchange within the Western Sudan allowed a broadly coherent set of norms and practices to spread across the region. These norms were undoubtedly influenced by the growing French presence and diplomatic activity in the Western Sudan. In the case of Great Britain’s treaty-making in coastal West Africa, for example, Inge Van Hulle argues that the British presence considerably expanded the use of written agreements in the region’s international affairs.Footnote 40 France likely had a similar influence in the Western Sudan, though a tradition of diplomacy through Arabic-language correspondence and ritualized public deliberations known as palavers also prevailed.Footnote 41 Ultimately, diverse European, Islamic, and regional traditions all informed Sudanian approaches to ratification. France followed this regional approach in its relations with Western Sudanian powers, all the while adhering to inter-European norms of ratification in its relations with Great Britain.
In this section, I first briefly lay out a concept of ratification that allows for comparison across distinct legal and political traditions (Section 4.1). I then address respectively the rules governing the ratification of treaties within Europe (Section 4.2) and the Western Sudan (Section 4.3) as well as diverging French practice in the two regions.
4.1 The concept of international ratification
Ratification in this article refers to the act, after a treaty’s initial signature, by which a treaty party confirms that it consents to be bound by the terms of the treaty. I adopt a functional approach to ratification to allow comparison across different cultural and normative contexts. I treat ratification not as a substantive concept with a precise definition but as a legal argument or device that triggers certain rights.Footnote 42 The ratifying act can take different forms. Its core effect, though, is to provide conclusive evidence of a party’s consent to treaty terms and thereby create legal obligations and rights for that party. From this perspective, a treaty’s ratification enables treaty parties to enforce the treaty and the various rights that arise thereunder. This article is thus concerned with the rules determining the enforceability of treaties on the international plane.
This approach distinguishes between the norms operating on the domestic and international levels. A polity’s internal constitutional order may prescribe certain procedures for the acceptance of a treaty. For example, some polities may require a representative body such as parliament to approve a treaty before the head of the polity declares its ratification. However, the act that renders a treaty binding upon a signatory under international law need not incorporate a polity’s domestic ratification process. Conceived exclusively, ratification could correspond to the act by which a designated authority notifies other treaty parties of the polity’s consent to be bound by the terms of the treaty. This act of notification would trigger the international responsibility of the polity even if the ratifying authority failed to follow the procedures prescribed by the polity’s domestic law. Understood inclusively, however, ratification could incorporate the requirements of domestic law. This could be the case if only duly authorized notifications rendered a treaty binding upon the signatory polity. Still, domestic prescriptions do not necessarily determine the international rules in relations between polities. The rules determining the enforceability of treaties within an international order are thus ultimately autonomous from – though not necessarily unrelated to – the constitutional order of its individual members.
Whether construed exclusively or inclusively, a valid ratification thus generally comports three elements: (i) a ratifying act, accomplished by (ii) a ratifying authority, and (iii) duly notified to the other treaty parties. In the earlier example of exclusive ratification, the ratifying act and the notification are effectively the same. This act must often be performed by the sovereign or head of the polity.Footnote 43 In contrast, in the case of inclusive ratification, the ratifying acts could be a vote of approval and a signature performed respectively by the legislature and the head of the polity. Ratification would then be complete once the polity notifies the other treaty parties of its consent.
4.2 Ratification in inter-European relations
Although Western jurists disagreed on precisely when a treaty required ratification, a broad consensus emerged in the second half of the nineteenth century. In European affairs, the head of a polity was generally recognized as the competent authority to express the signatory polity’s consent as they spoke for the polity in international affairs. As such, ratification was generally not required when the treaty was signed directly by the head of a polity.Footnote 44 In all other cases and unless its terms indicated otherwise, a treaty usually became binding only upon ratification.Footnote 45 Accordingly, during the 1878 Congress of Berlin, European powers agreed that ‘it is ratifications, rather than signatures alone, that confer upon treaties their definitive character’.Footnote 46
Despite this consensus, opinions diverged regarding the appropriate standards to determine the validity of a polity’s ratification under international law. Jurists notably debated whether these standards should incorporate a polity’s domestic laws, opposing inclusive and exclusive conceptions of ratification. On the one hand, proponents of an exclusive approach contended that a notification of ratification by the head of a polity made a treaty binding upon the polity, even if the head of the polity had failed to follow the procedures prescribed by domestic law. On the other hand, those who defended an inclusive approach argued that a polity could not be bound by a leader who declared the polity’s ratification in manifest violation of its domestic law.Footnote 47 Still, Western jurists generally agreed that the official authorized to represent the polity abroad bound the polity when, acting in conformity with their powers, the official declared that the polity had ratified a treaty.
Absent a formal declaration or notification by the head of a polity, European jurists also recognized the possibility of tacit ratification. According to this view, if the two parties to a bilateral treaty executed the treaty’s terms, the treaty became legally binding. This tacit form of ratification rendered a formal declaration or notification superfluous.Footnote 48 Significantly, the fulfilment of treaty terms by one party did not qualify as a tacit ratification. It functioned merely as a unilateral act of goodwill that, at best, allowed the provisional application of a treaty.Footnote 49 Moreover, to tacitly ratify a treaty, a party had to act pursuant to the treaty in a way that would be incompatible with its non-recognition of the treaty as binding.Footnote 50 As a result, not all acts that complied with the terms of a treaty – including its provisional application – necessarily implied its tacit ratification. In European international relations, treaty ratification therefore took two main forms. Often, heads of state formally declared that their polity accepted the treaty. Less frequently, the parties simply executed the terms of the treaty.
Applying these general standards to Franco-Sudanian treaties threw their validity into doubt. During the nineteenth century, the French head of state was generally either the ruling monarch or the president. Under the Third French Republic, founded in 1870, French law conferred upon the president the power to ratify treaties by decree, with certain exceptions.Footnote 51 Thus, according to prevailing Western international norms, treaties signed by a French official other than the monarch or president generally required ratification unless the treaty’s terms provided otherwise. Only once the head of state declared the treaty’s ratification could such a treaty become binding upon France.Footnote 52 Unsurprisingly, the Franco-Sudanian treaties were not signed by the French head of state. Instead, the signatories were a variety of French imperial agents under the authority of the ministry of the navy and the colonies, including the governor of Senegal and French military officers. Moreover, treaties rarely provided for their definitive entry into force without ratification. To be considered legally binding by European standards, these treaties would thus have required either express or tacit ratification.
French authorities do not appear to have considered a claim of tacit ratification a viable option. Such a claim presented problems of proof. Officials in Paris only had limited access to evidence demonstrating the execution of Franco-Sudanian treaties. Moreover, France had yet to fulfil its obligations under many of the treaties. In their correspondence, French officials acknowledged that the colonial administration maintained no effective presence in some of the territories that France claimed to have placed under its protection.Footnote 53 Indeed, such a presence would have defeated what French officials saw as the purpose of treaties of protection: claiming sovereignty without the significant costs required to occupy new territories. More generally, French officials’ careful selection of treaties to send to the president for ratification suggests that they did not consider this process superfluous. The minister of foreign affairs described presidential ratification as establishing the ‘definitive approval of the Government of the Republic’Footnote 54 and essential to establishing French territorial claims in negotiations with Great Britain. This attitude shows that French authorities believed that presidential ratification served a purpose that the mere execution of the treaties did not.
Ultimately, presidential ratification provided conclusive evidence to other European powers that the Franco-Sudanian treaties were duly ratified and in force. French officials were concerned that, without such evidence, France could not oppose its rights derived from these treaties to Great Britain.Footnote 55 With its European rivals in mind, the French government thus expedited the presidential ratification of treaties. In so doing, it sought to ensure the legal grounding of French claims to territorial sovereignty and protectorates in West Africa.
If the belated and rushed process of presidential ratification pre-empted a possible British challenge to French territorial claims, it also left those treaties without presidential approval vulnerable to contestation. This contestation ultimately came not from France’s imperial rivals, but from private litigants in French Senegal. In the early twentieth century, a series of land disputes pitted the administration of French Senegal against litigants claiming title based on acquisitions preceding the establishment of French rule.Footnote 56 These litigants challenged the validity of treaties concluded in 1764, 1765, and 1861 in which Kajoor purportedly ceded territory to France. In a case that appeared before the Court of Appeal for French West Africa in 1907, the litigants argued that ‘contrary to the principles of international law … these treaties had not received in France, the ratification of the sovereign power’.Footnote 57 The court rejected this argument, reasoning that ‘the ratification of treaties ha[d] not always been conducted in the forms required by our modern constitutions’ and that ‘one could even state that, under the old regimes, there were no absolute rules on this point’.Footnote 58 The court thus concluded that at least for treaties concluded before the establishment of the Third Republic in 1870,Footnote 59 the formal approval of the head of state was not necessary for the ratification of a treaty. Yet the court did not specify what alternative actions had fulfilled the requirements for ratification at the time. A commentator suggested that the treaties had been executed and therefore tacitly ratified.Footnote 60
Ultimately, the decisions of French courts do not significantly clarify whether Franco-Sudanian treaties had been duly ratified according to European standards in the 1880s. The treaties in the litigation concerned territories adjacent to major colonial towns where the colonial administration was firmly implanted by the turn of the twentieth century.Footnote 61 While these treaties transferring territory from France to Kajoor were arguably executed through the deployment of the colonial administration, the same did not apply to most other treaties.Footnote 62 More importantly, while the litigants challenged the validity of the treaties under international law, the court limited itself to reviewing the treaties’ conformity to requirements of French domestic law. The court observed that treaties being acts of the sovereign power, the court lacked jurisdiction to question their validity beyond this purview.Footnote 63
More than anything, the competing arguments surrounding the ratification of Franco-Sudanian treaties show the relative uncertainty regarding alternative modes of ratification at the end of the nineteenth century. A declaration by the head of a polity was recognized in Europe as conclusive evidence of the polity’s acceptance of a treaty. In the absence of such a declaration, there was considerable doubt whether a treaty would be recognized as binding.
4.3 Ratification in Franco-Sudanian international relations
In accordance with the experimental nature of Euro-African international relations before the twentieth century, French and Sudanian authorities were not always consistent in their approach to ratification.Footnote 64 Indeed, Sudanian administrators, diplomats and scholars do not appear to have theorized the concept of ratification in the way nineteenth-century European jurists sought to. Still, patterns emerge from the numerous treaties and considerable correspondence between French and Sudanian authorities. These sources evince that ratification was a well-established practice in nineteenth-century Franco-Sudanian affairs. Nevertheless, the practice and recognized forms of ratification in Europe and the Western Sudan differed.
In this sub-section, I reconstruct the Western Sudanian conception of ratification. First, I describe the standard form and practice of ratification in the region. Second, I argue that the governor of Senegal was the competent authority to ratify treaties for France in Franco-Sudanian relations. Third, I show that the governor’s political subordination to the metropolitan French government was compatible with his competence to ratify treaties.
4.3.1 Ratifying acts and statements
Ratification in Franco-Sudanian treaty-making was anchored in a personal approach to inter-polity relations.Footnote 65 Both the French and Arabic texts of treaties generally identified the parties as individual leaders rather than abstract political entities. Accordingly, most Franco-Sudanian treaties were presented, by their terms, as agreements between Sudanian rulers and the governor of French Senegal, as representatives of their respective polities. The personal style of Franco-Sudanian treaties should not be interpreted as signalling that these agreements committed leaders of polities in their personal capacities rather than binding the polities they represented.Footnote 66 Sudanian authorities generally treated their treaties with the French as governing relations between peoples rather than between individual leaders. In the treaties they negotiated and the correspondence they exchanged, Sudanian leaders stated expressly that the terms they agreed bound not only themselves but also their people, including their successors and all those under their authority.Footnote 67 This approach to treaties as agreements between peoples is also evident in the extension of collective privileges to security, protection, or trade to all members of a polity or subjects of a ruler.Footnote 68 The personal nature of Franco-Sudanian inter-polity relations more likely reflects the idea that rulers or political leaders spoke authoritatively for the political community they governed. In this way, personalized language was not solely a formal feature of Franco-Sudanian treaties; it also reflected substantive understandings of ratification and international relations in the Western Sudan.
The personal approach to Franco-Sudanian relations emerges in the treatment of ratification as the personal act of the head of a polity. In their treaties and correspondence, French and Sudanian authorities described ratification as performed by a ruler or a concert of political authorities rather than by the political community itself. Accordingly, in their relations with France, Sudanian polities generally did not ratify treaties that were initially signed by the polity’s supreme political authorities. Ratification was reserved for treaties negotiated by envoys on behalf of these leaders. Sudanian leaders often refused to recognize treaties that, according to them, they had not personally approved. For example, Umarian officials consistently rejected French claims based on a purported 1860 treaty, arguing that this treaty had never been approved by the Umarian leader at the time, Shaykh al-Hajj Umar.Footnote 69 In turn, French authorities refused to recognize an 1880 treaty with the Umarians, after declining to ratify the original version as negotiated and signed.Footnote 70 These instances indicate that, in Franco-Sudanian relations, claims based on an unratified treaty could be precarious.
The simplest way for political leaders to ratify a treaty was for them to simply sign below the text and the signatures of their envoys. Indeed, translators working for the administration of French Senegal often rendered the French term ‘ratification’ into Arabic as ‘placing one’s name’ (‘jaʿala ismahu’).Footnote 71 The Arabic expression made the abstract concept of ratification concrete by describing the act by which it is performed: in this context, signing. The signatures usually followed short notifications or statements designating the signatures as acts of ratification. The French and Arabic statements often differed slightly.
The representatives of the governor of Senegal and the emir of the Trarza, a Baydan people, chose this approach for their respective leaders’ ratification of an 1829 treaty (the 1829 France-Trarza Treaty). The treaty provided that within thirty days of its signature by the representatives, the governor and the emir would meet in person to ratify the treaty. The two leaders duly met and signed their names within the prescribed delay. The ratifying statement in French was brief, stating only the place and date of ratification. It read: ‘Ratified at the Seat of Government in Saint-Louis on 15 April 1829’ with the two signatures appearing below.Footnote 72 The Arabic version of the ratifying statement dispensed with the place of ratification but explicitly identified the ratifying authorities. It stated: ‘Muḥammad al-Ḥabīb, Emir of the Trarza, and Monsieur Jubelin, Emir of N’Dar, have placed their names on this paper on 15 April 1829 of the Christian calendar’.Footnote 73 Emir of N’Dar was a common title used in the region to refer to the governor of Senegal, N’Dar being the Wolof name for Saint-Louis. Ultimately, this form of ratification remained limited because leaders rarely met in person to ratify treaties together. In-person ratification became especially inconvenient as French Senegal established relations with polities based farther from Saint-Louis.
More often, the competent officials approved the treaty separately and notified the other treaty party of their consent. This notification could be sent separately or appended to a copy of the treaty. The governor of Senegal frequently wrote a brief statement of ratification and signed below a treaty in the way described above in addition to sending a separate notification to the other treaty party. Sudanian authorities, for their part, more often appended their notifications directly to treaties. While the form varied, Sudanian notifications often followed a regional epistolary style, characteristic of a personal approach to inter-polity relations.Footnote 74 The standard format consisted of three parts: a greeting, a ratifying statement and, on occasion, a signature. As was common with Arabic versions of treaties, the writer (or speaker) used the first or third person to refer to themselves and addressed the other party in the second person. The opening greeting identified the sender and the addressee, who were typically the two treaty parties. The ratifying statement expressed a ruler’s approval of the terms using the Arabic verb ‘raḍiya’, meaning to consent or to accept.Footnote 75 The sentence conveying the ruler’s approval generally contained a succinct description of the object of the treaty and the conditions under which it was negotiated. In some cases, political authorities added conditions for their ratification. Because the governor of Senegal usually represented France as a treaty party, Sudanian authorities tended to address notifications and ratifying statements to him.
Statements illustrating this more common approach to ratification appear at the bottom of an original copy of an 1835 treaty. The treaty sealed an agreement between the ruler of Walo, known as the ‘brak’, and the governor of Senegal (hereinafter the 1835 France-Walo Treaty). As was standard for Franco-Sudanian treaties, the original copy features the French text written on the left side of each page and the Arabic text written on the right side. Below the treaty text appear the governor’s ratifying statement and signature in French and Arabic. The statement follows the exact format of the 1829 France-Trarza Treaty. The French text states ‘Ratified at the Seat of Government in Saint-Louis on 4 September [1835]’,Footnote 76 while the Arabic text states ‘[t]he būr of N’Dar has placed his name on this paper on [4 September 1835]’.Footnote 77 ‘Būr’ is a loan word from Wolof in the Arabic dialect of the Senegal River region that means king or ruler. As with the 1829 France-Trarza Treaty, the Arabic statement of ratification omits the place where the governor signed and attributes the act of ratification directly to the governor.
A message from the brak of Walo, written only in Arabic, follows the governor’s bilingual ratifying statement. The absence of a French translation indicates that the statement’s writer served the authorities of Walo rather than French Senegal. It also suggests that the message was written after the governor’s ratification. If that is the case, a messenger would have brought the copy of the treaty bearing the governor’s ratifying signature to the authorities of Walo, thus notifying them of the governor’s ratification. With their message, the authorities of Walo responded accordingly. The unsigned and undated message transmits a statement from the brak addressed to the Emir of N’Dar.Footnote 78 The message reads as follows:
Thanks be to God who has made the pens put the feet to rest. Greetings of peace brought from Brak Fara Pinda to the Emir of N’Dar. The Brak has said: “O Emir, I have accepted (Arabic: raḍiytu) that by which my envoys have made peace [between us]”.Footnote 79
This message follows the epistolary style of Sudanian notifications with a greeting and a ratifying statement. It opens with a standard greeting that indicates the sender and the addressee.Footnote 80 The message then notifies the governor of Senegal, the other treaty party, that the brak has ratified the treaty by quoting a ratifying statement. As is standard, the statement alludes to the envoys who negotiated the treaty and establishes the treaty’s object as the establishment of peace between France and Walo. The statement further presents ratification as a personal grant of consent or approval (Arabic: riḍā) by the brak.Footnote 81 The use of a quotation reveals how an oral process, presumably conducted in Wolof, was rendered in writing into Arabic for the purposes of diplomatic correspondence. The message is written by an unidentified scribe who relates a ratifying statement spoken by the brak himself. It is the brak’s utterance that constitutes the ratification as such, while the written message merely notifies the other treaty party of the act. The direct reference to the brak’s utterance stands for a signature.
Although French authorities tended to omit the Arabic text when publishing copies of Franco-Sudanian treaties, published versions often include translations of Sudanian ratifying statements. A notable example is a published version of an 1871 treaty between the ruler or ‘damel’ of Kajoor and the governor of Senegal (hereinafter, the 1871 France-Kajoor Treaty). This version appears in a treaty collection published by the French ministry of the navy and the colonies in 1885. The published text includes a ratifying statement by Lat Joor, whose statement is rendered in French as follows:
From Lat Joor, king of Kajoor, to Governor Valière, the fullest greetings. I inform you that I, Lat Joor, accept the above conditions that you impose upon me for this land of Kajoor, know this surely. Greetings. Signed: Lat Joor.Footnote 82
This message too follows the standard three-part notification format. It opens with a greeting identifying the sender and addressee. In his ratifying statement, the damel also uses the first and second persons and addresses the governor of Senegal directly. The statement expresses the ruler’s approval with a terse description of the object of the treaty and the conditions of negotiations. In this case, Lat Joor presents the treaty as relating to the administration of Kajoor and as having been imposed upon him by the governor. Finally, Lat Joor’s signature follows the message.
Some notifications followed variations on this format. In a message ratifying an 1858 treaty with the governor of Senegal (hereinafter the 1858 France-Trarza Treaty), Muḥammad Lḥabīb – the leader of the Trarza, a Baydan people – addressed, not the governor himself, but an unspecified reader. He wrote:
To inform whoever shall come upon this that Muḥammad Lḥabīb has accepted what Akhiyāruhum (Khiaroum) has brought on behalf of his father in the matter of the settlement (Arabic: ṣulḥ) between himself [Muḥammad Lḥabīb] and the French. Done on the tenth of the month of shawwāl of the year one-thousand two-hundred and seventy-four of the Hijra, Sunday.Footnote 83 Muḥammad al-Ḥabīb, Emir of the Trarza, all his heirs and all his people.Footnote 84
This message features an abridged greeting followed by a ratifying statement and a signature. Unlike the messages appended to the 1835 France-Walo and 1871 France-Kajoor treaties, the ratifying statement is not addressed to the governor of Senegal but to an unspecified reader. Moreover, the writer does not use the first and second persons.Footnote 85 Still, the statement uses language similar to that appearing below the 1835 France-Walo treaty, presenting ratification as a personal act of the emir and describing the object of the treaty and its negotiators. The message states that Muḥammad al-Ḥabīb has approved (Arabic: ‘raḍiya’) terms of settlement negotiated by his representative and reported to him by the representative’s son, an individual identified in Arabic as ‘Akhiyāruhum’ and in French as ‘Khiaroum’.Footnote 86
Sudanian authorities sometimes wrote messages conditioning their approval on the acceptance of certain terms – a sort of treaty reservation. Lat Joor, the damel of Kajoor, transmitted such a message following the signature of two agreements with the French in 1879. The agreements consisted of a treaty and a supplementary act regarding the construction of a railway through Kajoor linking Saint-Louis and Dakar (hereinafter, respectively, the 1879 France-Kajoor Treaty and the 1879 Supplementary Act). Lat Joor set conditions for his approval of the supplementary act. He demanded the inclusion of a clause limiting the amount of work demanded of local workers recruited to help build the railroad. The negotiators of the agreements were Bou El-Moghdad Seck (Arabic: Abū al-Mughdād bin ʿAbd Allāh al-Shaykh),Footnote 87 the qadi of Saint-Louis, representing the governor of Senegal, and Madiakate Kalla, the qadi of Kajoor, representing the damel. While the term qadi refers generically to an Islamic judge, in Saint-Louis, as in Kajoor, this role was often combined with significant political functions.Footnote 88 Bou El-Moghdad and Madiakate Kalla not only represented the Muslim community before the governor and damel, they also served as diplomatic agents for their respective governments. Accordingly, it is Madiakate Kalla who conveyed Lat Joor’s conditions to the authorities of French Senegal. A translator rendered Madiakate Kalla’s message into French as follows:
We, the Qadi of Kajoor, in the name of Lat Dior and in his presence, declare that he accepts the conditions in the present act but with the strict limitation to be included in article 1 to demand from the people of Kajoor employed as workers an amount of work within the limits of their strength.Footnote 89
In a similar message, Madiakate Kalla, signalled Lat Joor’s approval of the main treaty. He is recorded as writing:
By order of Lat Dior, King of Kajoor, and in his presence, we, the Qadi of Kajoor, declare that he accepts all the conditions contained in the agreement presented by the Governor’s envoy, Si-El-Hadj Bou El Moghdad.Footnote 90
These statements, though consistent with the epistolary style of Arabic-language treaties and ratifying statements, nonetheless depart from the standard form in their attribution of the ratifying act. Notably, the ruler’s consent is not conveyed by a direct utterance or a statement purportedly in his hand but declared by his representative. While the ‘acceptance’ is still attributed personally to the damel, it is the qadi’s voice that appears in the foreground as the author of the message and declarant. Although references to the damel’s ‘presence’ and his ‘order’ seek to tie the act to the ruler, they do so less directly than a quoted utterance or a statement signed by the ruler.Footnote 91
As these messages indicate, treaty-making in Franco-Sudanian relations approximated a form of letter writing.Footnote 92 The notifications and ratifying statements that appear on treaties represent only a partial record of the notifications of ratification exchanged between the authorities of French Senegal and Sudanian powers. French notifications are particularly rare in treaty records. That is likely because the administration sent these notifications separately rather than appended to treaties. This has left the governor’s abbreviated ratifying statement and signature as the primary evidence of French Senegal’s ratification practice. Still, the correspondence between French Senegal and Sudanian powers presents additional evidence of French notifications, even when the original copies of treaties have been lost.
The extensive correspondence between France and the Umarian Empire regarding an 1866 treaty between the two states offers an example. The treaty was negotiated by the French envoys Eugène Mage and Louis Quintin in Segu, the Umarian capital, and brought back to Saint-Louis for the governor’s approval. Upon receipt of a copy of the treaty, the sitting governor, Émile Pinet-Laprade, sent a letter confirming his approval of the treaty to the Umarian caliph and son of al-Hajj Umar Tall, Ahmadu TallFootnote 93 (Arabic: Aḥmad bin ʿUmar bin Saʿīd al-Madanī). The governor wrote:
Messieurs Mage and Quintin have arrived in Saint-Louis in good health. They have told me that they received exquisite hospitality from you. I will not forget it. I accept the treaty that these officers have handed me, and by which we both commit ourselves, you and me, to protect the travellers and the caravans between the Upper Niger and all the lands where you rule, and our trading posts of Medina and Bakel. Trade relations can only solidify our friendship and will also be useful to our peoples.Footnote 94
This letter bears many of the standard features of Sudanian notifications. Notably, the sentence by which Governor Pinet-Laprade accepts the terms of the 1866 treaty evokes the ratifying statements of the brak of Walo, the emir of the Trarza, and the damel of Kajoor. The statement expresses the governor’s personal approval and briefly describes the object of the treaty and the conditions under which it has reached him. This letter thus further evinces the well-established practice of ratification between French Senegal and Sudanian powers.
As argued in this sub-section, ratification was integral to Franco-Sudanian treaty practice in the nineteenth century. French and Sudanian officials alike ratified treaties initially signed by their envoys. They also both denied the validity of treaties signed by their envoys but never ratified by a competent authority. The governor of Senegal played a central role in Franco-Sudanian relations, often appearing as the named treaty party representing France and approving treaties signed by subordinate officials. The personal style of Franco-Sudanian treaties and the designation of the governor of Senegal as the French treaty party account, in part, for the practice of gubernatorial ratification in Franco-Sudanian relations. By themselves, however, these characteristics of regional diplomacy do not answer whether the governor’s assent sufficed to render treaties enforceable in Western Sudanian international affairs. The next sub-section addresses the questions raised by French Senegal’s practice of gubernatorial ratification. Who was the competent French official to ratify treaties in Franco-Sudanian relations? Was it the governor or the president?
4.3.2 Ratifying authorities
The attitude of French authorities before their negotiations with Great Britain in the 1880s offers one answer to the question of who was the competent French ratifying authority. As previously argued, French authorities rushed treaties through the process of presidential ratification to buttress their claims against Great Britain. These efforts strongly suggest that gubernatorial approval alone did not suffice to render a treaty binding. Indeed, doctrinal sources confirm that only the French head of state could authoritatively declare France’s ratification of a treaty in late nineteenth century inter-European relations.Footnote 95 Yet, the behaviour of the administration of French Senegal and Sudanian authorities point to a wholly different answer to the same question. Both French and Sudanian officials in the region treated the governor of Senegal’s approval as fulfilling all the requirements of ratification in Franco-Sudanian relations, thus allowing a treaty to enter into force. Viewed from the banks of the Senegal and Niger rivers, the competent French ratifying authority was the governor of Senegal rather than the French president.
The extensive correspondence between successive governors of Senegal and the Umarian ruler Ahmadu regarding the 1866 Franco-Umarian Treaty sheds light on the significance of gubernatorial ratification in Franco-Sudanian relations. We have already seen that, upon receiving the treaty, the governor of Senegal, Pinet-Laprade, sent a letter to Ahmadu confirming his acceptance of its terms. However, the French government took no further steps to ratify the treaty. The historian of Franco-Umarian relations Yves Saint-Martin observes that, despite Pinet-Laprade’s letter, ‘[t]he treaty of 3 May 1866 was not ratified by Paris’.Footnote 96 Saint-Martin concludes that the treaty never entered into force.Footnote 97 In drawing this conclusion, Saint-Martin presumes that, per inter-European custom, the treaty could only become enforceable with the approval of France’s metropolitan authorities. Yet, the subsequent correspondence between the governors of Senegal and the Umarian ruler reaffirmed their common commitment to the 1866 treaty as the legal basis for their relations.
An 1870 letter from Ahmadu to the Commander of the French post of Bakel protesting against violations of the 1866 treaty usefully summarizes the Umarian view. Ahmadu wrote:
The treaty concluded between us and the envoy of the king of France, Mr. Mage, posed well known conditions which were supposed to remain unchanged for a long time and to be respected by both parties … If you do not respect the treaty and do not fulfill [the] term [prescribing the free circulation of people], let me know.Footnote 98
This letter was one of successive missives in which Ahmadu pressed French authorities to allow Futanke caravans from the middle Senegal River to migrate east to Umarian territory as agreed in the 1866 treaty. In response, Pinet-Laprade’s successor as governor, François Valière, never denounced the treaty. Nor did he argue that the treaty was unratified and therefore invalid. On the contrary, the governor ordered his subordinates to grant Ahmadu’s requests and return property confiscated from migrants. He also confirmed the French commitment to the 1866 treaty.Footnote 99
Although the 1866 treaty never underwent presidential ratification, the colonial administration continued to recognize it as being in force. Officials in Paris, who were notified of the administration’s actions, did not object.Footnote 100 Umarian authorities, for their part, consistently sought to enforce their rights under the 1866 treaty. In stark contrast, Umarian and French officials forcefully rejected as invalid treaties that were not approved by the Umarian leader and the governor respectively. The Umarians, in the case of the 1860 Franco-Umarian treaty, and the French, in the case of the 1880 Franco-Umarian treaty, showed that they regarded ratification by a competent authority as a prerequisite to a treaty’s entry into force.Footnote 101 However, their treatment of the 1866 treaty demonstrates that neither French nor Umarian officials considered presidential ratification necessary. In their view, the governor had duly ratified the treaty.
The conflict between France and Kajoor following the signature of their 1879 treaty offers yet another illustration of gubernatorial ratification in Franco-Sudanian relations. The French government never submitted the 1879 France-Kajoor Treaty to the president for ratification. The treaty, which was approved by the governor with ministerial authorization, did not contain any clauses governing its ratification and entry into force.Footnote 102 Yet, French authorities presented the treaty as valid and in force when Lat Joor, the ruler of Kajoor, sought to repudiate it. Soon thereafter, the colonial government launched a military attack against Kajoor on the pretext that Lat Joor had violated his obligations under the treaty.Footnote 103 By holding out a violation of the 1879 treaty as the justification for the invasion of Kajoor, the administration of French Senegal treated the treaty as ratified and binding. Yet, the treaty had not been formally approved by the French president, nor had it been previously executed. Indeed, French authorities claimed that its military action was necessary to allow the execution of the treaty which provided for the construction and operation of a railway by the French in Kajoor. The colonial administration thus recognized as binding a treaty that had been formally approved by the governor of Senegal but did not meet the European standards for either express or tacit ratification.
In addition to enforcing treaties ratified by the governor, French officials also published them in official collections. Collections of treaties published by the French government feature numerous treaties approved by the governor but not yet submitted for ratification by the French head of state.Footnote 104 These treaties span all the constitutional changes France underwent during the nineteenth century, as it vacillated between republican, imperial, and royal governments. Altogether, these patterns of enforcement and publication show that, at least through the 1880s, French and Sudanian authorities consistently recognized the governor of Senegal as competent to ratify treaties for France in Franco-Sudanian relations.
Treaty clauses that required approval from metropolitan authorities do not contradict the governor of Senegal’s role as France’s ratifying authority in Franco-Sudanian affairs. In the 1870s, the governor of Senegal conditioned his ratification of some treaties to ‘ministerial approval’. The condition appeared either in a treaty clause as a prerequisite for the entry into force of the treaty or in a statement preceding the governor’s signature.Footnote 105 In the 1880s, new treaties also emerged providing for their entry into force after presidential ratification.Footnote 106 As far as Western Sudanian leaders were concerned, these details related to the internal functioning of the French state. Their only interlocutor was the governor of Senegal, and it was he or one of his agents who would notify them of France’s ratification. As historian Yves Saint-Martin observed, in West Africa, the governor was not merely a regional warlord – or to use Saint-Martin’s more flattering term a ‘generalissimo’; he was also France’s minister of foreign affairs.Footnote 107 He spoke and acted authoritatively for France in regional international relations.
The content of treaties subject to ministerial approval confirms the ultimately domestic character of this procedure. The requirement to obtain ministerial approval reflected the new constitutional regime established by the Third Republic. Ministerial approval primarily concerned treaties that fell within the purview of parliament because they modified the trade regime or implicated major infrastructure plans funded and approved by parliament.Footnote 108 If French officials added express language conditioning the entry into force of treaties on ministerial approval, it is likely in part because gubernatorial ratification was not usually subject to such conditions in Franco-Sudanian practice. These terms functioned much like express reservations in inter-European practice, where a signatory could condition a treaty’s entry into force on the fulfilment of procedures mandated by its domestic law.Footnote 109 Accordingly, terms conditioning a treaty’s entry into force on ministerial approval did not negate the governor’s general authority to ratify treaties for France in Franco-Sudanian relations.
The subsequent emergence of clauses providing for presidential ratification in the 1880s reflected the increased importance of Franco-Sudanian treaties in relations among European powers. In other parts of Africa, France concluded treaties requiring approval by the French head of state earlier.Footnote 110 In the Western Sudan, however, the treaties containing such clauses were almost exclusively those purporting to establish protectorates in areas between French and British establishments, areas thus subject to the competing influence of the European rivals.Footnote 111 Presidential ratification in these cases, as in the rushed and belated ratifications described earlier, thus served to better legitimize French claims against European imperial rivals. By pursuing a dual process of ratification for Franco-Sudanian treaties, French officials ensured that these treaties produced legal effects across Western Sudanian and European normative orders. While gubernatorial ratification allowed a treaty to enter into force in Western Sudanian inter-polity relations, presidential ratification ensured that France could enforce its sovereign rights derived from the treaty against other European powers. In this way, dual ratification facilitated France’s conduct of international relations across two regions with different norms governing the enforceability of treaties.
4.3.3 Governor and emir
Although potentially unusual in the context of inter-European treaty practice,Footnote 112 the designation of the governor of French Senegal as the ratifying authority for treaties was consistent with French Senegal’s status in the region’s inter-polity relations. Within the political structure of the French empire, the governor of Senegal was a subordinate official answerable to the minister in charge of colonial affairs. However, in Franco-Sudanian diplomatic exchanges, the governor was the highest-ranking interlocutor and he spoke authoritatively for the French polity.Footnote 113 Further yet, colonial and Sudanian officials alike came to recognize the governor as a West African ruler much like any other.
The colonial administration consistently presented the governor as the autonomous ruler of a regional power. Over the course of the nineteenth century, the administration’s translators used various synonymous titles to designate the governor in Arabic. Though slightly different, all these titles broadly meant ruler of Saint-Louis. By far the most common title was that of Emir of N’Dar (‘amīr Indar’), meaning Emir of Saint-Louis. This title became standard in Arabic-language documents drafted by the administration and its employees by the second half of the century. The administration’s agents also occasionally styled the governor the būr, sheikh, or sultan of N’Dar.Footnote 114 The administration did not choose these titles by coincidence; they were among the most commonly used by Wolof and Baydan authorities of the lower Senegal River.Footnote 115 The colonial administration intended to portray the governor as an equal of Wolof and Baydan leaders, who were French Senegal’s first major diplomatic interlocutors.Footnote 116 These practices served to indigenize the governor and French Senegal respectively as a regional ruler and polity.
By styling the governor as the Emir of N’Dar, the colonial administration did not seek to deny the governor’s allegiance to the French government. On the contrary, by designating the title of emir as the standard Arabic rendition of governor, the administration clarified the governor’s relationship to the metropolitan French government. In the Islamic political tradition, the title of sultan usually applies to leaders of polities claiming absolute or near-absolute political independence, whereas the title emir usually implies either less power relative to other politically independent polities or less political autonomy.Footnote 117 For example, in the political structure of the Umarian state, the ruler claimed the title of caliph while the commanders of Umarian fortresses, whom he appointed and who also administered the surrounding provinces, assumed the title of emir.Footnote 118 Moreover, Franco-Sudanian treaties regularly alluded to the governor’s allegiance to metropolitan French authorities. The governor often purported to act in the name of the French sovereign, whether that be the monarch, under monarchical governments, or the people, under republican governments.Footnote 119 As such, the administration of French Senegal did not occlude the governor’s allegiance to superior authorities overseas.
For their part, Sudanian authorities were generally aware that the governor of Senegal owed allegiance to the metropolitan French government. Lucie Colvin notes, for example, that as early as the late eighteenth century the authorities of Kajoor asked a French envoy about the king of France. According to Colvin’s account, the authorities of Kajoor showed little interest in the metropolitan authorities beyond the amusement procured by what they saw as fantastical stories about the wealth and might of the French monarch.Footnote 120 Indeed, for Kajoor, as for other Sudanian powers, their relations with France passed exclusively through the administration of French Senegal. What lay beyond the sea was of little concern. In the 1880s, Umarian authorities often distinguished between French Senegal and the French Empire’s central authorities. Umarian correspondence from this period used the term ‘the French nations’ (‘umam Frāns’) to refer to France and its various dependencies, including N’Dar, which designated not only Saint-Louis proper but all of French Senegal.Footnote 121 One treaty draft prepared by Umarian diplomats was a rare example of a document designating a treaty as an agreement between a Sudanian leader and the French nations rather than between a Sudanian leader and the governor of Senegal.Footnote 122 In the late 1880s, when relations between the governor and Umarian ruler Ahmadu soured, Ahmadu addressed a letter directly to the ‘chief and grand council of the French’ to denounce the actions of the governor.Footnote 123 Most Sudanian authorities did not insist as much on this distinction. Still, these references suggest that, while the people of the Western Sudan came to know the governor of Senegal as the ruler of Saint-Louis, they were not ignorant of his allegiance to a superior authority.
Ultimately, the governor’s allegiance to a distant authority was of little consequence to most Sudanian leaders, as it posed no obstacle to its conduct of international relations like any other regional power. The authorities of French Senegal and the Western Sudan alike recognized the competence of autonomous polities owing allegiance to a foreign power to participate in regional inter-polity relations and conclude treaties.Footnote 124 It is beyond the scope of this article to identify the precise regional norms governing who or what constituted an international actor. For the present purposes, it suffices to recall that the Trarza leaders declared allegiance to the sultan of Morocco but nonetheless concluded treaties with France and neighbouring Wolof states.Footnote 125 Much like the Moroccan sultan, the French government represented a distant and ultimately hypothetical authority for most Sudanian officials. It was ultimately the governor, not the French government, who took on the task of enforcing the terms of treaties with regional powers. As such, Sudanian authorities were largely ambivalent regarding the governor of Senegal’s relationship to France.
In this respect, the titles used to refer to the governor of Senegal are instructive once again. Although Emir of N’Dar became the preferred title adopted by the administration of French Senegal, it was but one of many ways West Africans referred to the governor.Footnote 126 For example, even when a treaty’s main text referred to the governor as the Emir of N’Dar, annotations and signing statements by the Sudanian party sometimes referred to the governor as the būr. For example, in an 1850 treaty between Futa Toro and France, the Futanke signatories wrote a note alongside their signatures. They stated that ‘[t]hese are terms between the imām (almamy) of Futa and the būr of N’Dar’.Footnote 127 The imām, or almamy in Pulaar, was the theocratic leader of Futa Toro. This use of the term būr outside the Wolof-speaking regions of the lower Senegal suggests that the governor was associated with the Wolof and Baydan polities neighbouring Saint-Louis. Indeed, the governor came to be known orally throughout the central and upper Senegal as the ‘borom’, a related Wolof term for owner or master.Footnote 128 The flexible understanding of the governor of Senegal’s status further emerges from the appearance of the standard title ‘amīr Indar’ alongside the unusual term ‘mālik Indar’ (master or sovereign of Saint-Louis) in an 1839 treaty with the Baydan emir of the Brakna.Footnote 129 Like the Wolof term borom, the classical Arabic term mālik has a root meaning of owner and an extended meaning of master or sovereign.Footnote 130 ‘Mālik Indar’ thus appears to be a classical Arabic translation of the Wolof ‘borom N’Dar’, confirming the prevalence of this term and the analogy between the governor and a sovereign. The diversity of terminology suggests that the governor of Senegal’s ultimate allegiance to a distant authority was not a prominent concern for Sudanian leaders. In this regard, the colonial administration was no different. It consistently translated the panoply of terms for West African rulers, including damel, brak, būr, almamy (al-imām), emir, and tunka as ‘roi’ (king) or ‘souverain’ (sovereign). The ultimate information these terms conveyed was that the individual in question represented an organized polity and participated in the region’s international relations.
Ultimately, in the context of Franco-Sudanian affairs, the official competent to declare France’s ratification of a treaty was not the French head of state, but the governor of Senegal. Neither French nor Sudanian authorities treated the approval of the French president as a prerequisite for a treaty’s entry into force between them. They recognized treaties signed by the governor as valid without formal presidential approval. Moreover, for treaties signed by the governor’s agents, French and Sudanian authorities viewed a statement of approval from the governor as sufficient for ratification. This practice and understanding of ratification diverged from France’s attitude toward ratification in its relations with other Western powers.
As the French government rushed to ratify treaties between France and Sudanian powers in preparation for its negotiations with Great Britain, the ministers do not appear to have realized the contradictions in their conduct. Indeed, the historical record shows little evidence that French authorities were conscious of the way their treaties mediated between distinct yet increasingly imbricated inter-polity normative orders. Yet, a few moments of serendipitous lucidity shine through. In a letter to his colleague in charge of the colonies, the minister of foreign affairs stressed the urgency of completing the collection and ratification of what he called ‘treaties concluded by the sovereign of Senegal … with the various peoples’ of the region.Footnote 131 Upon receipt of the letter, an official from the ministry of the navy and the colonies sought to rectify the error and wrote ‘governor’ in pencil where the author had written ‘sovereign’.Footnote 132 This seemingly anodyne slip of the pen was perhaps as insightful a description as the bureaucrat’s dutiful correction.
5. Conclusion
Historians and legal scholars alike have often sought to paper over the contradictions between European powers’ conduct of international relations inside and outside Europe. Yet, recognizing these contradictions as integral to nineteenth century international relations – a feature rather than a design flaw – arguably paints a more coherent picture. Although ratification was well established in European and Western Sudanian inter-polity relations, the practice took on different forms in each region and was governed by different norms. France adapted to these distinct sets of norms by bifurcating its practice of international relations with Western nations, on the one hand, and the powers of the Western Sudan, on the other.
Recognizing this bifurcation reveals a crucial yet underappreciated aspect of nineteenth-century Franco-Sudanian treaty-making. The extension of inter-European relations beyond Europe and across the Americas, Africa, Asia, and the Pacific gave rise to legal tools to mediate between autonomous systems of international relations. Until the late nineteenth century, Franco-Sudanian treaties were instruments of a Western Sudanian regional order. However, the rise of Franco-British rivalries in West Africa led French authorities to ground claims against their European rivals on instruments drafted in a non-European normative order. Enforcing rights derived from these treaties in an inter-European context required a process of legal transposition. French authorities accomplished this transposition through presidential ratification. By the late nineteenth century, this work of transposition or interfacing between autonomous orders was embedded within treaties themselves, giving them a dual or Janus-faced quality as instruments of Western Sudanian and European relations. A staggered process of gubernatorial and presidential ratification thus emerged to allow treaties to simultaneously produce legal effects in the regional orders of the Western Sudan and Europe.
This insight emerges from a method that consists in approaching treaties as artefacts of a longer process of treaty-making. This approach reveals often obscured elements of the social life of treaties, bringing to light the work of conceptual translation, of transferring between written and oral forms, and of persuasion and approval. This work brings into relief previously overlooked African voices and practices that have left their marks on the material document. Scholars studying inter-polity normative order in West Africa have often run up against what they describe as a partial documentary record, both fragmentary and skewed. Sources on Euro-African relations abound, but their production and collection by imperial institutions often impose a seemingly inescapable imperial view of normative order based on a European ideal. The West African Islamic library offers a precious corrective but no panacea.Footnote 133 Using contextual, intertextual, and translingual approaches to revisit the arcane but substantial documentary record of nineteenth-century diplomatic activity in West Africa offers a path forward by drawing greater potential from both Euro-African and Islamic sources and confronting these two archives productively.
This approach also provides a path forward for historians of inter-polity order in other parts of what is today known as the ‘Global South’. Imperial constraint may manifest itself in the content of treaties as much as in their transposition to new contexts. Indeed, the inequality of so-called unequal treaties lies not merely in the acceptance of one-sided terms regarding jurisdiction, trade, and the use of force, but also in the decontextualization and re-interpretation of terms and of treaties themselves in a Western and imperial frame. While this article has focused on methods used in legal and historical scholarship, this history of decontextualization raises questions about the interpretation of imperial treaties and practice by international courts and institutions. Mamadou Hébié and Mieke van der Linden’s critiques of the International Court of Justice’s 2002 judgment in Land and Maritime Boundary between Cameroon and Nigeria have convincingly shown that the Court’s interpretation of an 1884 treaty between the leaders of Old Calabar and Great Britain did not accurately reflect Western practice and norms prevailing at the time.Footnote 134 Yet, the question remains whether international courts and institutions today have the tools to move beyond Western perspectives and appropriately consider historical practice and treaties in non-Western contexts.
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