Over recent decades, the moral 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 project, the question of the State responsibility of former colonial powers under international law is addressed. Such a legal responsibility, or liability, 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 or private property rights to land – imperium and dominium. The question is raised whether Europeans did or did not systematically 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 internal affairs of African political communities. If this is the case, then this offers a legal basis to invoke the State responsibility of the former colonizing powers in contemporary international law. This question will be considered through three exemplifying case studies involving three leading European State powers: the colonization of Nigeria by Britain, of Equatorial Africa by France and of Cameroon by Germany.
In the late 80s and 90s of the 20th century, the ‘Durban debate’ on (State) responsibility for grave historical injustices emerged. It was just then that it was recognized that colonialism caused distress to native populations and that it had to be avoided in the future. Additionally, regret was expressed for the lasting social and economic inequalities in many parts of the world. Legal responsibility or reparations were not subject to debate, which demonstrates the controversial nature of the subject, even a century after the struggle for African territory took place. Nevertheless, the discussion still persists with many questions unanswered. In this study, these questions will be analysed and addressed. A contribution to the ‘Durban debate’ will be made by attempting to solve the impasse on colonization and responsibility. Treaty-making practices between European colonial powers and African rulers will be examined to reveal the legal dimensions of colonialism and to explore grounds and possibilities on which responsibility for violation of the law during the colonization of Africa can be based.
The contracting parties of the protectorate treaties were, on the one hand, representatives of European States, and on the other hand, African rulers. Object of transfer of these treaties were either all-comprehensive or partial sovereignty rights over the territory. It has to be noted that many other agreements alongside treaties were concluded during the Age of New Imperialism between Europeans, whether or not as delegates of the State, and African people(s). The character of these agreements was diverse. Some bore a highly public character and could be considered genuine treaties under international law, whereas other had more of the characteristics of private law contracts, with many shades of grey in between. The same diversity and duplicity exist in relation to the status of the signatories of the agreements, both on the side of the colonizers as the colonized. To make and keep this study manageable, the focus will be on treaties concluded between representatives of European States and African rulers, with which partial or full sovereignty over territory was transferred.
Under current international law, the acquisition of territory is mainly understood in terms of the establishment of public sovereignty over territory, which concerns the vertical relationship between a sovereign and its subjects. Next to these jurisdictional rights to territory, there exist claims to territory of another nature, namely, the private rights to property of land, which ground their validity mainly on horizontal relations between individuals. Private property rights to land are recognized rights on the national and international level, and are protected on both levels. For the purposes of this PhD Thesis, the focus will be on the relation between private property of land, dominium, and territorial sovereignty, imperium.
The legal strategies of Britain, France, and Germany in the colonization of Africa in the Age of New Imperialism are examined and assessed in the light of the international law applicable at the time. This involves the analysis of the transfer of territorial sovereignty and private landownership in the framework of treaty-making practices between the colonial powers and the Africans. It questions whether these two concepts were used consistently, adequately and legally. Subsequently, the question arises whether legal responsibility of colonizing States can be established and, consequently, whether a basis of a claim for reparations can be constituted. This project draws on recent scholarship on this theme but also reaches beyond it by supplementing a theoretical analysis of the writings of 19th-century international legal scholars and official documents with an analysis of the texts of the cession and protectorate treaties concluded between European colonial powers, more specifically Britain, France and Germany, and African native rulers. By executing these assessments, both international legal theory and practice are examined and compared, in order to obtain the complete picture of 19th-century international law.
International law in practice has to be found in and reconstructed on the basis of contemporary and, thus, primary legal sources. Archival research is inevitable and imperative. Original documents have to be found, analysed and used to complete the complex puzzle of establishing the law as it was. In the context of the history of international law, State conduct forms an important indicator of existing rules. Official documents produced by persons and institutions creating, applying and enforcing the law, like reports of parliamentary debates, legislation, case law, treaties, etc. have to be examined. Unofficial documents, like exchanges of personal letters between State officials, journals, ship’s logs, diaries, etc. contribute to the factual context in which the law was instituted and had to function. Both public and private resources had to be consulted. Eventually, an accurate, complete and reliable understanding of the legal order as it stood during the Age of New Imperialism is provided.
From case studies such as those of Charles Henry Alexandrowicz (1973) and Hermann Hesse (1906) it can be learned that in these treaties the distinction between public sovereignty (imperium) and of private property (dominium) was strictly observed. Often, it was stipulated explicitly that transfer of sovereignty would not affect the private legal rights of natives in territory over which the sovereignty was transferred to a European power. However, this distinction between sovereignty and property was not strictly upheld in the interpretation and execution of the treaties. It is commonly accepted in literature that these delineations were not always respected by the colonizing powers and that the transfer of sovereignty often implied the apprehension of native property rights over land too. In other words, sovereignty transfer was used to usurp private property rights.
Nevertheless, few in-depth studies about the treaty practices and the execution and implementation of treaties exist. It still needs to be assessed whether the extension of sovereignty rights to private property rights was sporadic or systematic, and whether it was or became part of a conscious strategy of colonization. Also, it needs to be assessed to what extent the practice of acquiring territory including the apprehension of land could be accommodated with the treaties and with international law. If the latter is the case, the question is answered whether these violations would suffice to constitute wrongful acts entailing the State responsibility of the colonizing powers under contemporary and current international rules of State responsibility, and whether international law provides any remedies. The matter of the legality of the extension of sovereignty to include and property needs to be assessed in the light of the object and nature of the treaties and the signatories. In this light, the status of local rulers and peoples in their relation to European States under international law has to be examined.
Consequently, the two main questions with which this project is concerned are whether the European colonial powers acquired private property rights to land along with territorial sovereignty by concluding cession and protectorate treaties with African rulers in the Age of New Imperialism (1870-1914)? Did the European colonial powers comply with their treaty obligations in particular and their international legal obligations more generally? And, if treaties and international law were violated, which consequences and remedies were and are available according to the treaties concerned or beyond the treaty provisions, in international law? In short, was the acquisition and partition of Africa by and between European States legal?
