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Africa and International Law — the Emergence to Statehood

Published online by Cambridge University Press:  11 November 2008

Nii Lante Bruce-Wallace
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Extract

At the beginning of this century only two African countries, Liberia and Ethiopia, were recognised as independent states which could be fully involved in international law. Both participated in the activities of the League of Nations. Today, with the exception of Namibia, the face of Africa is covered by sovereign states.

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Articles
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The Journal of Modern African Studies , Volume 23 , Issue 4 , December 1985 , pp. 575 - 602
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Copyright © Cambridge University Press 1985

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References

page 575 note 1 The Spanish enclaves of Ceuta and Melilla are still retained in Morocco.

page 575 note 2 Grotius, Hugo, De Jure Belli Ac Pacis Libri (1646), translated by Kelsey, F., Vols. 1 and 2, Classics of International Law Series (Oxford, 1925), Vol. 1, ch. 1, section xiv.Google Scholar

page 576 note 1 Pufendorf, Samuel, De Jure Naturae et Gentium Libri Octo (1672), translated by C. H., and Father, W. A. Old, Classics of International Law Series (Oxford, 1934), ch. 11, section 13.Google Scholar

page 576 note 2 Smith, Herbert A., Great Britain and the Law of Nations (London, 1932), Vol. 1, pp. 12 and 14.Google Scholar

page 576 note 3 Article VII of the Treaty of Paris, 1856.

page 576 note 4 Oppenheim, Lawrence, International Law (London, 1905, 8th edn. 1955), Vol. 1, pp. 18 and 50.Google Scholar

page 576 note 5 Crawford, James, The Creation of States in International Law (Oxford, 1979), p. 14.Google Scholar

page 577 note 1 Levtzion, Nehemia, ‘The Sahara and the Sudan from the Conquest of the Maghrib to the Rise of the Almoravids’, in Fage, J. D. (ed.), The Cambridge History of Africa, Vol. 2, From c. 500 BC to AD 1050 (Cambridge, 1978), p. 667.Google Scholar

page 577 note 2 Stride, G. T. and Ifeka, Caroline, Peoples and Empires of West Africa (London, 1971), p. 36;Google Scholar and Boahen, Adu, Topics in West African History (London, 1966), p. 8.Google Scholar

page 577 note 3 Boahen, op. cit. p. 8.

page 577 note 4 Ibid.

page 578 note 1 Cited in Ibid.

page 578 note 2 Ibid. p. 18; Stride and Ifeka, op. cit. p. 60.

page 578 note 3 Boahen, op. cit. p. 18.

page 579 note 1 Ibid. p. 20.

page 579 note 2 Cited in Ibid. p. 18.

page 579 note 3 Bovill, Edward W., The Golden Trade of the Moors (London, 1958), p. 91.Google Scholar

page 579 note 4 Ibid. p. 90.

page 579 note 5 General references include Clark, J. Desmond (ed.), The Cambridge History of Africa, Vol. 1, From the Earliest times to c. 500 BC (Cambridge, 1982);Google Scholar Fage (ed.), op. cit.; Oliver, Roland (ed.), The Cambridge History of Africa, Vol. 3, From c. 1050 to c. 1600 (Cambridge, 1977);Google ScholarMcEwan, Peter J., Africa from Early Time to 1800 (Oxford, 1968);Google ScholarOliver, Roland (ed.), The Middle Age of African History (Oxford, 1967);Google Scholar and Oliver, Roland and Crowder, Michael, The Cambridge Encylopedia of Africa (Cambridge, 1981).Google Scholar

page 580 note 1 E.g. Syatauw, J. J. G., Some Newly Established Asian States and the Development of International Law (The Hague, 1961), who claims, p. 18:Google Scholar ‘In this respect Asia differs from Africa. At the time of the first sea voyages to Asia, Africa did not consist of well-organized states, though it had known some important states in the past.’

page 580 note 2 For a thorough discussion of the consititution, see Rattray, R. S., Ashanti Law and Constitution (Oxford, 1929).Google Scholar

page 580 note 3 The Mpanyimfo or Elders can be easily identified as what today is called a Cabinet. Though Asante presented the features of a confederation, the Asantehene was more than primus inter pares.

page 580 note 4 Boahen, op. cit. p. 74.

page 581 note 1 Rattray, op. cit. p. 105.

page 581 note 2 Ibid.

page 581 note 3 Colson, Elizabeth, ‘African Society at the Time of the Scramble’, in Gann, L. H. and Duignan, Peter (eds.), Colonialism in Africa, 1870–1960, Vol. 1, The History and Politics of Colonialism, 1870–1914 (Cambridge, 1969), pp. 32 ff.Google Scholar

page 581 note 4 See Grey, Richard (ed.), The Cambridge History of Africa, Vol. 4, From c. 1600 to 1790 to 1790 (Cambridge, 1975);Google ScholarFlint, John E. (ed.), The Cambridge History of Africa, Vol. 5, From c. 1790 to 1870 (Cambridge, 1976);Google ScholarOliver, Roland and Sanderson, G. N. (eds.), The Cambridge History of Africa, Vol. 6, From c. 1870 to 1905 (Cambridge, 1985);Google ScholarOliver, Roland and Atmore, Anthony, Africa Since 1800 (Cambridge, 1981 edn.);Google Scholar Unesco, General History of Africa, Vols. I–II (Paris, 1981);Google Scholar and Hallett, Robin, Africa to 1875: a modern history (London, 1970).Google Scholar

page 582 note 1 Davidson, Basil, The Africans: an entry to cultural history (London, 1969), p. 289.Google Scholar

page 582 note 2 More examples of such diplomatic links are mentioned in Alexandrowicz, Charles H., The European-African Confrontation: a study in treaty making (Leiden, 1973), p. 108.Google Scholar

page 582 note 3 Davidson, Basil, Old Africa Rediscovered (London, 1959), p. 20.Google Scholar

page 582 note 4 Discussed by Alexandrowicz, Charles H., ‘Empirical and Doctrinal Positivism in International Law’, in British Yearbook of International Law (London), 47, 1974–1975, pp. 286 ff.Google Scholar

page 583 note 1 Crawford, op. cit. p. 176. By way of contrast, a few writers – mostly western – added the criterion of some degree of civilisation; for example, Westlake, John, Collected Papers on Public International Law (Cambridge, 1914 edn.), pp. 39–57 and 145, required a ‘native government capable of controlling white men or under which white civilization can exist’.Google Scholar

page 583 note 2 Elias, T. O., Africa and the Development of International Law (Leiden, 1972), pp. 34–5.Google Scholar The leading work on the subject is Fortes, Meyer and Evans-Pritchard, E. E. (eds.), African Political Systems (London, 1940, revised in 1970).Google Scholar

page 583 note 3 Euro-centrism may be defined as the practice whereby in international law there remain ‘settled habits of thought which have led to the acceptance, mostly uncritical, of European (and Western) intellectual and socio-cultural traditions as the invariable, if not superior, frameworks for enquiry’. See Baxi, Upendra, ‘Some Remarks on Eurocentrism and the Law of Nations’, in Anand, Ram Prakash (ed.), Asian States and the Development of Universal International Law (Delhi, 1972), p. 3.Google Scholar

page 583 note 4 Flint (ed.), op. cit. p. 4. See also Colsen, op. cit. pp. 30–2.

page 584 note 1 E.g. Treaty of Peace between Great Britain and France Respecting the Cessions of Territories and Boundary on the West Coast of Africa, signed at Versailles on 3 September 1783. See Hertslet, Edward, The Map of Africa by Treaty (London, 1896), Vol. 2, p. 539.Google Scholar

page 584 note 2 Lindley, Mark F., The Acquisition and Government of Backward Territory in International Law (London, 1926), pp. 40–1.Google Scholar

page 584 note 3 International Court of Justice Reports (The Hague), 1975, p. 39.Google Scholar

page 585 note 1 Annuaire (Geneva), 10, 1885, pp. 181–2.Google Scholar This proposition has been strongly challenged since then. For example, according to Judge M. Ammoun: ‘It was a monstrous blunder and a flagrant injustice to consider Africa south of the Sahara as terrae nullius, to be shared among the Powers for occupation and colonization, when even in the sixteenth century Vitoria had written that Europeans could not obtain sovereignty over the Indies by occupation, for they were not terra nullius.’ Opinion, Namibia, International Court of Justice Reports, 1975, p. 86.Google Scholar

page 585 note 2 British Foreign and State Papers (London), 76, 1888, p. 19.Google Scholar

page 585 note 3 E.g. the taking of the Island of Madelaine (Gorée) on behalf of the French on 24 February 1774, and of Cassino, Rio (River Kitefine) on 25 March 1857. See Alexandrowicz, The European-African Confrontation, pp. 12–13.Google Scholar

page 585 note 4 For more examples, see Ibid. particularly chs. III–IV; also Hertslet, op. cit.

page 585 note 5 Alexandrowicz, The European-African Confrontation, pp. 7 and 12.

page 585 note 6 Italian envoys were accredited to Ethiopia by 1882, but when they failed to get King Menelik to sign a protectorate agreement, a war erupted with Italy in which Ethiopia emerged victorious. See Oliver and Atmore, Africa Since 1800.

page 586 note 1 Omer-Cooper, J. D. et al. , The Growth of African Civilization (London, 1968), Vol. 1, pp. 133–6.Google Scholar

page 586 note 2 United Nations General Assembly, Resolution 2145 (XXI), 1966. See also the South-West Africa cases.

page 586 note 3 United Nations Security Council, Resolution 276, 1970.

page 586 note 4 Opinion, Namibia, International Court of Justice Reports, 1975, para. 19.Google Scholar

page 587 note 1 Marek, Krystyna, Identity and Continuity of States in Public International Law (Geneva, 1955), pp. 263–82.Google Scholar See the case of ‘Haile Selassie v. Cable and Wireless Ltd’, No. 2, 1939, 1 Chancery Reports 182. Ethiopia may be compared to Albania and Austria, which also faced some interruptions in their history. See Grayson, C., Austria's International Position, 1938–1953: the re-establishment of an independent Austria (Geneva, 1953);Google ScholarClute, Robert F., The International Legal Status of Austria, 1938–1955 (The Hague, 1962);Google ScholarLanger, Robert, Seizure of Territory: the Stimson Doctrine and related practices in legal theory and diplomatic practice (Princeton, 1947), pp. 245–53;Google ScholarLemkin, Raphael, Axis Rule in Occupied Europe (Washington, D.C., 1944), pp. 99–107;Google Scholar and ‘Case of Gold Looted by Germany from Rome in 1943’, in International Law Reports (London), 20, 1953, pp. 450–1.Google Scholar

page 587 note 2 Judge Moreno Quintana made similar observations with respect to India in his dissenting opinion in the ‘Case Concerning Right of Passage over Indian Territory (Portugal v. India)’, in International Court of Justice Reports, 1960, p. 95: ‘When it became independent, India made no fundamental change in the established system. We must not forget that India, as the territorial successor, was not acquiring the territory for the first time, but was recovering an independence lost long since. Its legal position at once reverted to what it had been more than a hundred years before, as though the British occupation had made no difference.’

Cf. also the argument put forward by the representative of Sri Lanka in October 1968 to the International Law Commission that Ceylon was an ‘Ancient State’ and could not be classified as a ‘New State’. Discussion of the Report on Succession of States and Governments in Respect of Treaties by Sir Humphrey Waddock, the Special Rapporteur (New York, 1968).Google Scholar

page 588 note 1 See, generally, Widstrand, Carl Gösta (ed.), African Boundary Problems (Uppsala, 1969);Google Scholar and Brownlie, Ian, African Boundaries: a legal and diplomatic encyclopaedia (London, Berkeley, and Los Angeles, 1979).Google Scholar

page 588 note 2 Alexandrowicz, Charles H., ‘New and Original States: the issue of reversion to sovereignty’, in International Affairs (London), 45, 1969, pp. 472–3.Google Scholar

page 588 note 3 Article III (3) of the 1963 Charter of the Organisation of African Unity emphasises ‘respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence’.

page 588 note 4 On the administrations of the colonial powers, see Gann, L. H. and Duignan, Peter (eds.), Colonialism in Africa, 1870–1960, Vol. 2, The History and Politics of Colonialism, 1914–1960 (Cambridge, 1970).Google Scholar

page 589 note 1 One colonial Governor, SirGuggisberg, Frederick G., The Gold Coast: a review of the events of 1920–1926 and the prospects of 1927–1928 (Accra, 1927), pp. 22–3,Google Scholar put it thus: ‘It was at the preservation of native institutions that I aimed when devising what is the outstanding feature of the new Constitution… These provincial councils are really the breakwaters defending our native constitutions, institutions and customs against the disintegrating waves of western civilization.’ The classic type of indirect rule was employed by SirFrederick, (later Lord) Lugard, first in East Africa, and then in Nigeria, as explained in his Dual Mandate in British Tropical Africa (London, 1965 edn.).Google Scholar

page 589 note 2 ‘Convention on Rights and Duties of States’, signed as Montevideo on 26 December 1933.

page 589 note 3 Crawford, op. cit. ch. 3; and Wallace-Bruce, Nii Lante, ‘The South African Bantustans and Statehood in International Law’, M.Int.L. thesis, Australian National University, Canberra, 1982, ch. IV.Google Scholar

page 590 note 1 Report of the German-Polish Mixed Tribunal in the Annual Digest (The Hague), 5, 2, 1929, pp. 14–15.Google Scholar When advocating the admission of Israel to the United Nations in 1948, the U.S. representative to the Security Council stated: ‘We are all aware that, under the traditional definition of a State in international law, all the great writers have pointed to four qualifications… One does not find in the general classic treatment of this subject any insistence that the territory of a State must be exactly fixed by definite frontiers…both reason and history demonstrate that the concept of territory does not necessarily include precise delimitation of the boundaries… Historically, the concept is one of insistence that there must be some position of the earth's surface which its people inhabit and over which its government exercises authority.’ United Nations Security Council Official Records, 383rd meeting, 2 December 1948, No. 128, pp. 9–12.

page 590 note 2 Africa Contemporary Record, 1978–1979 (London and New York, 1980), p. B426.Google Scholar

page 591 note 1 Western Sahara Opinion, paras. 87–8.

page 591 note 2 See the controversy between Devine, D. J. and Fawcett, J. E. S. in Modern Law Review (London), 34, 1971, p. 410.Google Scholar

page 591 note 3 Simmonds, R., Legal Problems Arising from the United Nations Military Operations in the Congo (The Hague, 1968);Google Scholar and Abi-Saab, Georges, The United Nations Operations in the Congo (Oxford, 1978).Google Scholar

page 592 note 1 Higgins, Rosalyn, The Development of International Law Through the Political Organs of the United Nations (London, 1963), pp. 22–3.Google Scholar

page 592 note 2 Ibid.

page 592 note 3 Keesing's Contemporary Archives (London, 1975), p. 27497.Google ScholarPubMed

page 592 note 4 Ibid. pp. 27499–500.

page 594 note 1 Permanent Court of International Justice Reports (The Hague, 1931), Series A/B, No. 41, pp. 57–8.Google Scholar See also the definition put forward by Huber, Judge Mas in the Island of Palma's case, in Reports of International Arbitral Awards (The Hague, 1928), p. 838.Google Scholar

page 594 note 2 Oppenheim, op. cit. p. 125.

page 594 note 3 Starke, Joseph Gabriel, An Introduction to International Law (London, 1950, 1972 edn.), p. 144.Google Scholar

page 595 note 1 United Nations General Assembly, Resolution 306 (XXVIII), 2 November 1973.

page 595 note 2 Ijalaye, David I., ‘Was “Biafra” at Any Time a State in International Law?’, in American Journal of International Law (New York), 65, 1971, p. 551.Google Scholar

page 595 note 3 Suzuki, Eisuke, ‘Self-Determination and World Public Order: community responses to territorial separation’, in Virginia Journal of International Law (Charlottesville), 16, 1976, p. 856.Google Scholar

page 595 note 4 State Department, Papers Relating to the Foreign Relations of the U.S. (Washington, D.C., 1932), III, p. 7. The League of Nations expressly endorsed this doctrine when its Assembly adopted a resolution employing identical language on 11 March 1932.Google Scholar

page 595 note 5 League of Nations Publications (Geneva), VIIA, 12, 1932, p. 71.Google Scholar

page 596 note 1 E.g. United Nations Security Council Resolutions 217, 20 November 1965; 232, 16 December 1966; 253, 29 November 1969; 277, 18 March 1970; 388, 6 April 1977; and United Nations General Assembly Resolutions 2012 (xx), 12 October 1965; 2022 (xx), November 1965.

page 596 note 2 Devine, D. J., ‘Does South Africa Recognize Rhodesian Independence?’, in South African Law Journal (Cape Town), 86, 1969, p. 438.Google Scholar

page 596 note 3 International Commission of Jurists, , Racial Discrimination and Repression in Southern Rhodesia (Geneva, 1976).Google Scholar

page 597 note 1 I.D.A.F., Zimbabwe: the facts about Rhodesia (London, 1977), p. 25.Google Scholar

page 597 note 2 Lauterpacht, Hersch, Recognition in International Law (London, 1947), pp. 26 and 409.Google Scholar Chief Justice Best stated in 1825 in the case of Yrisarri v. Clement: ‘I take the rule to be this – if a body of persons assemble together to protect themselves, and support their own independence and make laws and have courts of justice, that is evidence of their being a state’, 2 G&P (British) 1825, p. 233.Google Scholar The Netherlands declared its independence from Spain in 1576, Portugal from Spain in 1640, and Belgium from Holland in 1831. The U.S. and Latin-American states went through a similar experience.

page 597 note 3 Smiley, Xan, ‘Zimbabwe, South Africa and the Rise of Robert Mugabe’, in Foreign Affairs (New York), 8, 1979–1980, p. 1065.Google Scholar

page 597 note 4 According to Soames, Lord, ‘From Rhodesia to Zimbabwe’, in International Affairs, 56, 1980, p. 405,CrossRefGoogle Scholar the colonial drama there was played in reverse – least power in the beginning but total responsibility at the end. See also Colin Legum, ‘The Road to and from Lancaster House’, in Africa Contemporary Record, 1979–80, p. A43.

page 597 note 5 Dore, Isaak I., ‘Recognition of Rhodesia and Traditional International Law: some conceptual problems’, in Vanderbilt Journal of Transnational Law (Nashville), 13, 1980, pp. 33–5.Google Scholar

page 597 note 6 Rhodesia was an original member of G.A.T.T., and as part of the Federation became a member of the E.C.A. in 1961, the I.T.U. in 1960, and the F.A.O. in 1959.

page 598 note 1 Lipton, Merle, ‘Independent Bantustans?’, in International Affairs, 48, 1, 01 1972, p. 3;Google Scholar and Butler, Jeffrey, Rotberg, Robert, and Adams, John, The Black Homelands of South Africa: the political and economic development of Bophuthatswana and KwaZulu (Berkeley, Los Angeles, and London, 1977), p. 25.Google Scholar

page 599 note 1 Dr Hilgard Muller, South Africa's Representative at the United Nations General Assembly, 19th Session, 1308th Meeting, 21 December 1964, para. 26. The blueprint for apartheid was recommended in the Report of the Tomlinison Commission on the Socio-Economic Development of the Bantu Areas (Pretoria, 1955).Google Scholar

page 599 note 2 Other important legislation includes the Promotion of Bantu Self-Government Act, No. 46 of 1959, the Bantu Homelands Citizenship Act, No. 26 of 1970, and the Bantu Homelands Constitution Act, No. 21 of 1971. The word ‘Black’ is now used in place of ‘Bantu’.

page 599 note 3 Explanatory Memorandum to the Bantu Homelands Constitution Act, 1971.

page 599 note 4 United Nations General Assembly Resolution 3411C (xxx), 28 November 1975.

page 599 note 5 Ibid. Resolution 31/6A of 26 October 1976 was endorsed by the Security Council in December 1976 by Resolution 402. On 21 September 1979 the Security Council condemned ‘the so-called independence of Venda’ and declared this to be ‘totally invalid’. U.N. Document s/13549, 1979.

page 600 note 1 Republic of South Africa Constitution Act, No. 110 of 1984.

page 600 note 2 United Nations General Assembly Resolution 2625 (xxv) of 24 October 1970.

page 600 note 3 Ibid. 3411D (xxx) of November 1975 and 31/6A of October 1976.

page 601 note 1 Ibid. 38/11 of 15 November 1983.

page 601 note 2 Greig, Donald W., International Law (London, 1976 edn.), pp. 158–9;Google Scholar and O'Connell, D. P., International Law (London, 1970 edn.), Vol. 1.Google Scholar

page 601 note 3 According to Lauterpacht, Elihu (ed.), International Law, Vol. 1 (Cambridge, 1977), p. 392,Google Scholar the practice is now ‘almost universal’, but in the view of Weis, P., Nationality and Statelessness in International Law (London, 1979 edn.), p. 243,Google Scholar the option should be given only to those remaining in the old state. The Bantu (now Black) Homelands Citizenship Act, No. 26 of 1970, allocated Bantustan ‘citizenship’ irrespective of habitual place of residence, and Africans were not given the option as to whether they wished to regain their South African citizenship or whether they wished to belong to the Bantustans. Instead, using linguistic and tribal background, their future was decided. The result is that the Africans have two types of citizenship: de jure (that allocated to them by law) and resident (depending on where they actually live).

page 601 note 4 Biko, Steve, I Write What I Like (London, 1978), p. 82, my emphasis.Google Scholar

page 601 note 5 United Nations General Assembly Resolutions 2174 (xxx), 1948; 2200A (xx), 1966; 616B, 1952; 2074 (xx), 1965; 2145 (XXI), 1966; 2923E, 1972, and United Nations Security Council Resolution 134, 1960.

page 601 note 6 Sohn, Louis B., ‘The Human Rights Law of the Charter’, in Texas International Law Journal (Austin), 12, 1977, p. 131.Google Scholar

page 602 note 1 United Nations General Assembly Resolutions 2106 (xx), 1965, and 3068 (XXVIII), 1973.

page 602 note 2 Ibid. 2627, 1970.

page 602 note 3 Mahmoud, M., The Juridical Manifesto (The Hague, 1969), ch. 3.Google Scholar