The Acquisition of Africa (1870-1914)

The Nature of International Law

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Over recent decades, the responsibility for the past actions of the European colonial powers in relation to their former colonies has been subject to a lively debate. In this book, the question of the responsibility under international law of former colonial States is addressed. Such a legal responsibility would presuppose the violation of the international law that was applicable at the time of colonization. In the ‘Scramble for Africa’ during the Age of New Imperialism (1870-1914), European States and non-State actors mainly used cession and protectorate treaties to acquire territorial sovereignty (imperium) and property rights over land (dominium). The question is raised whether Europeans did or did not on a systematic scale breach these treaties in the context of the acquisition of territory and the expansion of empire, mainly through extending sovereignty rights and, subsequently, intervening in the internal affairs of African political entities.
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Biographical Note

Mieke van der Linden, Ph.D (2014), is senior researcher at the Max Planck Institute for Comparative Public Law and International Law. She has published a dissertation, book chapters and articles on the legacy of Africa’s colonization in international law, including ‘The Inextricable Connection between Historical Consciousness and International Law: New Imperialism, the International Court of Justice and its Interpretation of the Inter-temporal Rule’ (in: C. Binder et al., 2014 ESIL Conference Proceedings, vol. 5. Oxford: forthcoming) and ‘The Euro-Centric Nature of International Law, A Legacy from New Imperialism’ (in: D. De ruysscher et al (eds.), Legal History, Moving in New Directions. Antwerp: 2015, pp. 413-427).

Table of contents

Preface ... ix

1 New Imperialism: Imperium, Dominium and Responsibility under International Law ... 1
1 Introduction ... 1
2 New Imperialism ... 2
3 New Imperialism in International Legal Discourse ... 7
4 Dominium and Imperium ... 17
5 Legal and Social Relevance ... 21
6 Methodology and Case Studies ... 25
7 Plan ... 32

2 Dominium ... 34
1 Property Rights: Theoretical Premises ... 34
2 European and African Perspectives ... 38
2.1 Land Law from a European Point of View ... 38
2.2 African Land Law ... 41
3 Concluding Remarks: New Imperialism and Natives’ Property Rights ... 48

3 Imperium ... 51
1 Introduction ... 51
2 Theoretical and Conceptual Framework ... 52
3 Nineteenth-century European International law: Sovereignty, Territory and State ... 55
4 The African Perspective ... 62
5 Concluding Remarks ... 67

4 Territorium et Titulus ... 70
1 Introduction ... 70
2 Treaties, Cession and Protectorates ... 72
2.1 International Legal Theory ... 81
2.2 Cession and Protectorate Treaties ... 88
3 Conclusion ... 92

5 British Nigeria ... 95
1 Introduction ... 95
2 Historical Background ... 96
3 Treaties and Contracts between Britain and African Natives ... 106
3.1 Early Stage: Cession Treaties and Trade Contracts ... 107
3.2 The 1880s and 1890s: Protectorate Treaties ... 112
4 Legislation in the Wake of the Acquisition of Sovereignty over Territory ... 120
5 The Judiciary and Its Case Law ... 127
5.1 Colonial Judiciary ... 127
5.2 Case Law ... 131
6 Conclusion ... 137

6 French Equatorial Africa ... 139
1 Introduction ... 139
2 Historical Background ... 140
3 French Treaty Practice in Equatorial Africa ... 145
3.1 Cession Treaties ... 148
3.2 Protectorate Treaties ... 151
3.3 Evaluation of French Treaty Practices ... 159
4 Legislation in the Wake of the Transfer of External Sovereignty ... 161
5 Case Law and the Interpretation of Treaties ... 164
6 Conclusion ... 169

7 German Cameroon ... 174
1 Introduction ... 174
2 Historical Background ... 174
3 Treaties between Germany and Cameroonian Rulers ... 185
3.1 Validity of Treaties ... 185
3.2 Treaty Practice ... 189
4 Legislation Following the Conclusion of Treaties ... 199
5 Treaty Interpretation and Execution ... 210
6 Conclusion ... 213

8 Ex facto ius oritur? 215
1 International Law in Practice: Treaties between European States and African Polities 216
2 The Legality of the Treaty-based Acquisition and Partition of Africa ... 227
2.1 Interference with Natives’ Land Ownership ... 228
2.2 Violation of International Law ... 234
2.3 Customary International Law Impaired ... 236
3 Theory versus Practice: What was International Law in the Nineteenth Century? ... 238
4 Conclusion ... 241

9 A Reflection on the Nature of International Law: Redressing the Illegality of Africa’s Colonization ... 245
1 Introduction ... 245
2 The Inter-temporal Rule ... 246
2.1 General Features of the Inter-temporal Rule ... 247
2.2 The icj and the Inter-temporal Rule ... 252
2.3 International Law in Its Historical Context ... 257
3 Impossibility of Establishing Responsibility? ... 260
3.1 Non-identifiable Parties ... 260
3.2 Supersession ... 266
4 Recognition ... 268
5 Conclusion ... 279

10 Evaluative Summary and Conclusion ... 282

Chronological List of Treaties and Other Agreements ... 293
Case Laws ... 301
Bibliography ... 304

Index ... 340

Readership

All interested in the history of international law and the responsibility of States for wrongs in their former colonies. These interested include legal academics and practitioners, politicians, historians and the general public.

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