Van der Linden Mieke. The Acquisition of Africa (1870-1914). The Nature of International Law

Brill, 2017. — 364 p. — (Legal History Library; Studies in the History of International Law 20/8).The Acquisition of Africa (1870-1914) - The Nature of International Law by Mieke van der Linden is a seminal study on the history of the whole African continent in late 19th century and at the beginning of the 20th century through the prism of the development of international law. The responsibility of European powers for their past actions as colonizers has not wanted for scholarly attention. The present book contributes to this lively debate by exploring that responsibility under international law. Assuming such responsibility presupposes the violation of international law as it stood at the time of colonization. In the ‘Scramble for Africa’ (1870–1914) during the age of New Imperialism, European States and non-State actors mainly used cession and protectorate treaties to acquire territorial sovereignty (imperium) and property rights over land (dominium). A key question raised in this book is whether in doing so these European parties did or did not systematically violate these treaties. If they did, the question arises whether this violation offers a legal basis to hold former colonizing powers responsible under contemporary international law. To answer these questions, three case studies will be performed. These concern the colonization of Nigeria by Great Britain, of Equatorial Africa by France and of Cameroon by Germany. Performing these case studies essentially entails examining treaty-making practices of European colonial powers and African rulers, and the aim of this inquiry is twofold: to reveal the legal dimensions of colonialism and to explore grounds that could give rise to responsibility for violation of the law during the colonization of Africa.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.Preface
New Imperialism: Imperium, Dominium and Responsibility under International Law
Introduction
New Imperialism
New Imperialism in International Legal Discourse
Dominium and Imperium
Legal and Social Relevance
Methodology and Case Studies
PlanDominium
Property Rights: Theoretical Premises
European and African Perspectives
Land Law from a European Point of View
African Land Law
Concluding Remarks: New Imperialism and Natives’ Property RightsImperium
Introduction
Theoretical and Conceptual Framework
Nineteenth-century European International Law: Sovereignty, Territory and State
The African Perspective
Concluding RemarksTerritorium et Titulus
Introduction
Treaties, Cession and Protectorates
International Legal Theory
Cession and Protectorate Treaties
ConclusionBritish Nigeria
Introduction
Historical Background
Treaties and Contracts between Britain and African Natives
Early Stage: Cession Treaties and Trade Contracts
The 1880s and 1890s: Protectorate Treaties
Legislation in the Wake of the Acquisition of Sovereignty over Territory
The Judiciary and Its Case Law
Colonial Judiciary
Case Law
ConclusionFrench Equatorial Africa
Introduction
Historical Background
French Treaty Practice in Equatorial Africa
Cession Treaties
Protectorate Treaties
Evaluation of French Treaty Practices
Legislation in the Wake of the Transfer of External Sovereignty
Case Law and the Interpretation of Treaties
ConclusionGerman Cameroon
Introduction
Historical Background
Treaties between Germany and Cameroonian Rulers
Validity of Treaties
Treaty Practice
Legislation Following the Conclusion of Treaties
Treaty Interpretation and Execution
ConclusionEx facto ius oritur?
International Law in Practice: Treaties between European States and African Polities
The Legality of the Treaty-based Acquisition and Partition of Africa
Interference with Natives’ Land Ownership
Violation of International Law
Customary International Law Impaired
Theory versus Practice: What was International Law in the Nineteenth Century?
ConclusionA Reflection on the Nature of International Law: Redressing the Illegality of Africa’s Colonization
Introduction
The Inter-temporal Rule
General Features of the Inter-temporal Rule
The ICJ and the Inter-temporal Rule
International Law in Its Historical Context
Impossibility of Establishing Responsibility?
Non-identifiable Parties
Supersession
Recognition
ConclusionEvaluative Summary and ConclusionChronological List of Treaties and Other Agreements
Case Laws
Bibliography
Index