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On 10 October 2002, the International Court of Justice at The Hague delivered judgement in the contentious case between Cameroon and Nigeria (Equatorial Guinea intervening) to the effect, inter alia, that ‘sovereignty over the Bakassi Peninsula lies with the Republic of Cameroon’. The Court further decided that ‘the Federal Republic of Nigeria is under an obligation expeditiously and without condition to withdraw its administration and its military and police forces from the territories which fall within the sovereignty of the Republic of Cameroon’.
On the face of it, this was simply an interstate territorial dispute involving two African States. This article argues, however, that in the circumstances of the case, colonialism was on trial. Properly analysed, and within the broad framework of colonial responsibility, at the heart of the case is British responsibility to the people of Bakassi and, by extension, Nigeria. Regrettably, the majority of the Court evaded this central issue and chose, instead, to engage in a spurious analysis whose end result was the transformation of a regime engendered by a treaty that, by its very provisions, established a protectorate into a colony or a so-called colonial protectorate! In the circumstances, the article underscores the imperative of critical legal scholarship that interrogates the colonial enterprise, with a view to purging international law of its colonial vestiges.
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The Guardian (Nigeria) editorial of 22 October 2002, at 22.
Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening), Judgement of 10 October 2002,  I.C.J. Reports.
ibid at para 325 (III) (B).
ibid para 325 (V) (A).
Counter-Memorial of Nigeria, Vol. 1, at 109 (Emphasis added).
Malcolm Shaw, Title to Territory in Africa: International Legal Issues ( 1986) 283, n 155.
R v Crewe  2 KB 576, 603-4.
Cameroon v Nigeria (n 2), Separate Opinion of Judge Awn Al-Khasawneh, para. 7(d).
Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, Vol. I (9 th edn., 1992), 267-269 (Emphasis added).
John Westlake, Chapters on the Principles of International Law ( 1894) 149.
T. J. Lawrence, The Principles of International Law (7 th edn, Percy H. Winfield eds 1923) 69. The first edition of the book appeared in 1895.
Dakas C.J. Dakas, ‘The Role of International Law in the Colonization of Africa: A Review in Light of Recent Calls for Re-Colonization’ ( 1999) 7 African Yearbook of International Law 85. See also, Dakas C.J. Dakas, International Law on Trial: Bakassi and the Eurocentricity of International Law ( 2003).
The Sacramento Bee, Sunday, May 15, 1994, Forum 1.
Quoted in J. C. Anene, The International Boundaries of Nigeria, 1885-1960 ( 1970) 2-3.
A. I. Asiwaju, ‘The Conceptual Framework’, in A. I. Asiwaju (ed), Partitioned Africans: Ethnic Relations across Africa’s International Boundaries, 1884-1984 ( 1985) 2. For an elaborate list, see Asiwaju, ‘Partitioned Culture Areas: A Checklist’, in Asiwaju, at 256-8.
Judgment  I.C.J. Reports. Separate Opinion of Judge Ajibola, at 52-4.
Said S. Samatar, ‘The Somali Dilemma: Nation in Search of a State’, in Asiwaju (n 19) 155, at 176.
Advisory Opinion on the Status of Western Sahara  I.C.J. Reports 12, 59-60.
Cameroon v Nigeria (n 2), (Separate Opinion of Judge Awn Al-Khasawneh (n 8)).
ibid (Dissenting Opinion of Judge Koroma.
Sir Robert Jennings, ‘The Role of the International Court of Justice’ ( 1997) 68 British Yearbook of International Law 3.
On the legacy of the 19 th century, see generally, David Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’ ( 1997) 17 Quinnipiac. L. Rev. 99; and Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ ( 1999) 40 Harv. Int’l L.J. 1.
See for instance, Walter Rodney, How Europe Underdeveloped Africa ( 1981); Daniel Offiong, Imperialism and Dependency ( 1980); Adu A. Boahen (ed), General History of Africa: Africa Under Colonial Domination, 1880-1935, Vol. VII ( 1985); Basil Davidson, Africa in History ( 1991b); Basil Davidson, The Black Man’s Burden: Africa and the Curse of the Nation-State ( 1992); Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism( 1996); Crawford Young, ‘The Heritage of Colonialism’, in John W. Harbeson and Donald Rothchild (eds), Africa in World Politics ( 1991) 19.
The extent, if any, to which the works of these publicists influenced or reflected the norms of international law (such as customary international law and treaties) at the material time will become evident in the course of the discourse.
J. Fischer Williams, ‘Introduction’, in J. Fischer Williams (ed), Memories of John Westlake ( 1914) 1, 7.
Shaw singles out Westlake as the “foremost among… theorists” who took the view that “the organized tribes of peoples of non-European lands had no sovereign rights over their territories and thus no sovereign title by means of effective occupation”. Accordingly, the inhabitants were “factually and not legally in occupation of the territory, which could be treated as terra nullius and acquired by any State in accordance with the requirements of international law”. Shaw further points out that the views of such theorists “appeared to dominate throughout the nineteenth century when Africa was being divided amongst the competing European powers”: Shaw (n 6 at 32). Additionally, a survey of the views of “the leading writers” of the 19 th century and the early years of the 20 th century – Kent, Wheaton, Phillimore, Hall, Westlake, Oppenheim, Anzilloti, Fauchille, Holtzendorf, Nys, Bello, Rivier and F. de Martens – on international law and western civilization is provided in C. Wilfred Jenks, The Common Law of Mankind ( 1958) 69-74. Jenks describes these publicists as “so outstanding a company from nine different nations that no one can dismiss their views as unrepresentative or unimportant”. He further submits that “their views differ only in degrees of emphasis”. Wheaton, for instance, remarks: “Is there a uniform law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilised and Christian people of Europe or to those of European origin”: Henry Wheaton, Elements of International Law (6 th edn., William Beach Lawrence ed., 1855) 16. Furthermore, Oppenheim notes that “only such territory can be the object of occupation as belongs to no State, whether it is entirely uninhabited, for instance an island, or inhabited by natives whose community is not to be considered a State”: L. Oppenheim , International Law: A Treatise, Vol. I (8 th edn., H. Lauterpacht ed., 1955) 555.
Westlake (n 10) V.
ibid at 134.
ibid at 139-143.
Cf. M. F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion ( 1926) 21: “[I]t is difficult to see why, if the natives are to be regarded as capable of possessing and transferring property, they should not also be considered competent to hold and transfer the sovereignty which they actually exercise”.
If they did, that would have put their own title – to the extent that it was claimed to be predicated on the treaty – in jeopardy. Accordingly, it would not have been in the interest of the British, even if they would have ordinarily preferred otherwise, to challenge the sovereignty of the African States. It is against the backdrop of this reality that Shaw’s example of how Britain deferred to Germany on the strength of an 1883 treaty between the latter and a “local chief” in respect of the “Cameroons territory”, and his assertion that “[h]ad the area been regarded as terra nullius, the mere signing of a document would not have been sufficient and there would therefore have been scope for Britain to recoup the situation”, should be appreciated: Shaw (n 6) 39.
Quoted in U. O. Umozurike, International Law and Colonialism in Africa ( 1979) 40.
Quoted in Westlake (n 10) at 153.
In his own words, quoted, on account of its significance, in extenso:
I had been instructed … to make a treaty with Kivalli by which he should place himself under British protection; in fact, I had a bundle of printed treaties which I was to make as many people sign as possible. This signing is an amiable farce, the equivalent of an occupation. The modus operandi is somewhat as follows: A ragged untidy European, who in any civilised country would be in danger of being taken up by the police as a vagrant, lands at a native village … [T]he chief comes and receives his presents, the so-called interpreter pretends to explain the treaty to the chief. The chief does not understand a word of it but he looks pleased as he receives another present of beads; a mark is made on a printed treaty by the chief and another by the interpreter, the vagrant, who professes to be the representative of a great empire, signs his name. The chief takes the paper but with some hesitation, as he regards the whole performance as a new and therefore dangerous piece of witchcraft. The boat sails away and the new ally and protégé of England or France immediately throws the treaty into the fire.Kavalli was an important personage and it was desirable that he should perform this little comedy with us before he should do so with the Belgians.
A. B. Thruston, African Incidents: Personal Experiences in Egypt and Unyoro ( 1900) 170-1, quoted in Yilma Makonnen, International Law and the New States of Africa: A Study of the International Legal Problems of State Succession in the Newly Independent States of Eastern Africa ( 1983) 14-5. Emphasis added.
Anghie, (n 26) 48.
Westlake (n 10) 142-3. In the circumstance, Westlake submits that if a “fanatical admirer of savage life argued that the whites ought to be kept out, he would only be driven to the same conclusion by another route, for a government on the spot would be necessary to keep them out”. Interestingly, in a tribute to Westlake, Symonds has this to say: “He hated injustice and oppression from his very soul, and none who ever heard him speak against them could forget the burning and impassioned words in which he arraigned the tyrant and pleaded for the victims of tyranny”: Arthur G. Symonds, “The Balkan Committee”, in J. Fischer Williams, (n 29) 115. Apparently, Westlake’s crusade, as so described, did not encompass the plight of the “uncivilized”.
Westlake, (n 10) 155. Hyde further points out that by deeming the “uncivilized or extremely backward” inhabitants of a territory “to be incapable of possessing a right to sovereignty”, a conqueror could “ignore their title and proceed to occupy [their] land as though it were vacant”. In such cases, he further notes, “conquest refers merely to the military or physical effort by means of which occupation becomes possible”: Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. I (2 nd rev. edn., 1947) 357. Reliance on conquest, in the sense in which it is traditionally understood, would have entailed the establishment by the European Powers – at least in their relations with one another – of unprovoked aggression which is a key ingredient of conquest as a mode of territorial acquisition. Thus, the invocation of terra nullius had the dubious advantage of dispensing with this requirement. Besides, resort to war against African States would have invariably pitched rival European Powers against one another.
John Austin, The Province of Jurisprudence Determined (David Campbell and Philip Thomas, eds., 1998) 101. The first edition of the book appeared in 1832.
Lawrence (n 11) 50-1.
Western Sahara Case (n 22) at 39 (1975).
Lawrence (n 11) 148.
ibid 66, 68-9.
Lindley (n 36) 17.
ibid 24, 43.
ibid 26. As Shaw further points out, the essence of the pre-19 th century attitude was that the acquisition of sovereignty over the lands of the peoples of such entities “depended upon the concept of conquest not occupation, and accordingly discussion centred on the notion of just war and the legality of hostilities against non-Christians”: Shaw (n 6) 31.
A. I. Asiwaju, ‘The Conceptual Framework’, in Asiwaju (n 19).
Young describes the nature of the scramble thus: “Africa, in the rhetorical metaphor of imperial jingoism, was a ripe melon awaiting carving in the late nineteenth century. Those who scrambled fastest won the largest slices and the right to consume at their leisure the sweet, succulent flesh. Stragglers snatched only small servings or tasteless portions; Italians, for example, found only desserts on their plates”: Young (n 27) 19.
The Final Act of the Conference was signed by the plenipotentiaries of Austria-Hungary, Belgium, Denmark, France, Great Britain, Germany, Italy, Netherlands, Portugal, Russia, Spain, Sweden, Norway, Turkey and the United States. On the Berlin Conference generally, see S. E. Crowe, The Berlin West Africa Conference ( 1970).
George Louis Beer, African Questions at the Paris Peace Conference (Louis Herbert Gray ed., 1923) 195.
Cf. The Separate Opinion of Judge Ammoun in the Western Sahara Case, (n 22) 85-7. Judge Ammoun refers to the “penetrating views” of Bayona-Ba-Meya (for Zaire, now Democratic Republic of Congo) and Mohammed Bedjaoui (for Algeria), on the issue of terra nullius, which he commends as:
the reply which may be given to the participants in the Berlin Conference of 1885, who, during the fierce blaze of nineteenth-century colonialism, the success of which they sought to ensure by eliminating competition, regarded sub-Saharan Africa as an immense terra nullius available for the first occupier, whereas that continent had been inhabited since pre-historic times, and flourishing kingdoms had there been established – Ghana, Mali, Bornu – whose civilization survived until the colonial period, and only succumbed to the wounds inflicted by colonization and the slave trade…It was in the southern part of this continent and in Kenya that…ethnologists discovered the remains of the first hominoids.
Both Bayona-Ba-Meya and Bedjaoui, had challenged the use of terra nullius by the European Powers to deprive Africans of their lands. In essence, they (Bedjaoui in particular) questioned the universal application of a law, purporting to be international, in which Africans had no input.
Quoted in Westlake, (n 10) 138.
Lindley (n 36) 34. Shaw shares this view: Shaw (n 6), at 34-5. In the Western Sahara Case, the Court observed that “[o]n occasion …the word ‘occupation’ was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an ‘occupation’ of a ‘terra nullius’ in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual ‘cession’ of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius”. There is no specific indication, however, that the Court had in mind the Berlin Conference and the Berlin Act. The Court further points out that it was not called upon to “pronounce upon the legal character or the legality of the titles which led to Spain becoming the administering Power of Western Sahara”: Western Sahara Case (n 22) 39-40.
Cf. Diane F. Orentlicher, ‘Separation Anxiety: International Responses to Ethno-Separatist Claims’ ( 1998) 23 Yale J. Int’l L., 1, 28-9. Orentlicher points out that European States acquired sovereignty over some colonial territories through occupation of what was characterized as terra nullius and over other areas through conquest. However, in most cases, transfers of sovereignty from African to European governments were formally effected by bilateral treaties, including treaties of cession and treaties establishing protectorates. Such treaties implicitly recognized the African rulers who signed them as possessing “the attributes of sovereignty”, while the treaty form “implied a legal equality” between the signatories. Orentlicher, however, makes it clear that, in practice, during the 19 th century, “African rulers often executed these treaties under considerable duress”. Additionally, the treaties were legally relevant less as a mode of transferring rights between the two parties than as a means by which European Powers could, as against each other, demonstrate their title to a particular territory in Africa: ibid.
Lindley (n 36) 44.
Anghie, (n 26) 61. Further criticisms of the Berlin Conference in particular and the colonial project in general, are provided in Makau Wa Mutua, ‘Why Redraw the Map of Africa: A Legal and Moral Inquiry’ ( 1995b) 16 Mich. J. Int’l L., 1113; Makau Wa Mutua, ‘Putting Humpty Dumpty Back Together Again: The Dilemmas of the Post-Colonial African State’ ( 1995a) 21 Brook. J. Int’l L. 505.
Africa and the Africans ( 1964) 1. Questioning the myths surrounding the history of Africa, Okoye asserts:
Africa has a long and enduring history behind it, longer than any historian has described it. Africa has had its own rich sweep of events which European conquest and settlement have failed to reckon with. Yet, no civilization of the world can be divorced from the continent. The depth of its antiquity, the immensity of its treasure and the resilience of its people form a fascinating study which no single intellect can comprehend, no single volume describe.
Mokwogo Okoye, African Responses ( 1964) 389.
Samora Machel, quoted in Patrick Wilmot, Ideology and National Consciousness ( 1980) 189.
Georg Hegel, The Philosophy of History, quoted in Joseph E. Harris, Africans and Their History, (2 nd rev. edn., 1998) 9. Harris’ text addresses critical issues such as “A tradition of Myths and Stereotypes [about Africa]” (Chapter 1), “The Evolution of Early African Societies” (Chapter 2), “Early Kingdoms and City-States” (Chapter 3), “The Scramble and Partition” (Chapter 11), “African Diplomacy, Resistance and Rebellion” (Chapter 12), and “The European Colonizers: Policies and Practices” (Chapter 13). Unfortunately, as Harris observes, “[r]ace in general, and myths and stereotypes surrounding physical features and skin color in particular, have been so pervasive and basic in black-white relations and in accounts of those interactions that in spite of a stream of scientific evidence to the contrary, the concept of black inferiority continues to thrive in many minds”: ibid. On the question of race in the United States, for instance, see Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (rev. edn., 1995).
Rodney (n 27).
See generally, Basil Davidson, Black Mother: Africa – The Years of Trial ( 1970); W. N. Huggins and J. G. Jackson, An Introduction to African Civilizations ( 1973); Joseph C. Miller (ed), The African Past Speaks ( 1980); L. A. Thompson and J Ferguson (eds), Africa in Classical Antiquity ( 1969); Okoye, (n 65); H. M. Schieffelin (ed), The People of Africa ( 1974).
For instance, Blyden is reported to have remarked that an exhibition by Africans opened his eyes to “capacities and susceptibilities altogether inconsistent with the theory that dooms such a people to a state of perpetual barbarism or of essential inferiority to the more favoured races”: E. W. Blyden, Report on the Falaba Expedition (1872), quoted in Schieffelin (ibid at XI). After witnessing the wonders of Egypt, Volney, a French Oriental traveler, exclaimed: “To think that this black race, today enslaved by us and the object of our disdain, is the same to which we owe our arts and sciences and even our speech”: Quoted in Okoye, (n 65) 92.
T. O. Elias, Africa and the Development of International Law (2 nd rev. edn., Richard Akinjide eds 1988) 6-17. See also, U. O. Umozurike, Introduction to International Law ( 1993) 7-8; Basil Davidson, African Civilization Revisited ( 1991a); A. K. Mensah-Brown, ‘Notes on International Law and Pre-Colonial Legal History of Modern Ghana’, in Mensah-Brown (ed), African International Legal History ( 1975), at 107; T. O. Elias, ‘International Relations in Africa: A Historical Survey’, in Mensah-Brown, ibid at 87; Godwin-Collins K. N. Onyeledo, “‘International Law’ Among the Yoruba-Benin and the Hausa-Fulani”, in Mensah-Brown, ibid at 153; Basil Davidson, Africa in History ( 1991b); J. F. Ade Ajayi (ed) Africa in the Nineteenth Century Until the 1880s ( 1989).
Elias (n 71) at 19.
Al-Khasawneh, (n 8) para. 3. It is against the backdrop of this reality that Nigeria’s outburst should be appreciated: In its official reaction to the verdict, the Nigerian Government 23 October 2002, asserted that “for purely political reasons, the Court, headed by a French President, upheld a legal position which is contrary to all known laws and conventions, thus legitimising and promoting the interests of former colonial powers at our expense.” Alleging bias, the Nigerian Government maintained that “[t]he French President of the Court and the English and German judges should have disqualified themselves since the countries which they represent are, in essence, parties to the action or have substantial stakes.” “These judges, as citizens of the colonial powers whose action had come under scrutiny,” Nigeria further asserted, “acted as judges in their own cause…” New Nigerian 25 October 2002, at 3.
Cameroon v Nigeria (n 2), Declaration of Judge Rezek.
Case Concerning Certain Phosphate Lands in Nauru (Preliminary Objections) Judgment (Nauru v. Australia), Judgment of 26 June 1992  I.C.J. Reports.
However, Article 38(1) (c) of the Statute of the International Court of Justice still speaks of “the general principles of law recognized by civilized nations”, without enunciating what the test of civilization is: 26 June 1945, 59 Stat. 1055, T. S. No. 993, 3 Bevans 1179.
Ajayi JFA (ed) (1989) Africa in the nineteenth century until the 1880s
Anene JC (1970) The international boundaries of Nigeria, 1885–1960. pp 2–3
Anghie A (1999) Finding the peripheries: sovereignty and colonialism in nineteenth-century international law. Harv Int Law J 40:1
Asiwaju AI (ed) (1985) Partitioned Africans: ethnic relations across Africa’s international boundaries, 1884–1984. p 2
Austin J (1998) In: Campbell D, Thomas P (eds) The province of jurisprudence determined. p 101
Beer GL (1923) In: Gray LH (ed) African questions at the Paris Peace Conference. p 195
Boahen AA (ed) (1985) General history of Africa: Africa under colonial domination, 1880–1935, vol VII
Bohannan P (1964) Africa and the Africans
Crowe SE (1970) The Berlin West Africa Conference
Dakas DCJ (1999) The role of international law in the colonization of Africa: a review in light of recent calls for re-colonization. Afr Yearb Int Law 7:85
Dakas DCJ (2003) International law on trial: Bakassi and the Eurocentricity of International Law
Davidson B (1970) Black Mother: Africa – the years of trial
Davidson B (1991a) African civilization revisited
Davidson B (1991b) Africa in history
Davidson B (1992) The Black Man’s burden: Africa and the curse of the nation-state
Elias TO (1988) In: Akinjide R (ed) Africa and the development of international law, 2nd rev. edn. pp 6–17
Hacker A (1995) Two nations: Black and White, separate, hostile, unequal, rev. edn
Harbeson JW, Rothchild D (eds) (1991) Africa in world politics. p 19
Harris JE (1998) Africans and their history, 2nd rev. edn. p 9
Huggins WN, Jackson JG (1973) An introduction to African civilizations
Hyde CC (1947) International law chiefly as interpreted and applied by the United States, vol I, 2nd rev. edn. p 357
Jenks CW (1958) The common law of mankind. pp 69–74
Jennings R (1997) The role of the International Court of Justice. Br Yearb Int Law 68:3
Jennings R, Watts A (eds) (1992) Oppenheim’s international law, vol I, 9th edn. pp 267–269
Kennedy D (1997) International law and the nineteenth century: history of an illusion. Quinnipiac Law Rev 17:99
Lawrence TJ (1923) In: Winfield PH (ed) The principles of international law, 7th edn. p 69
Lindley MF (1926) The acquisition and government of backward territory in international law: being a treatise on the law and practice relating to colonial expansion. p 21
Makonnen Y (1983) International law and the new states of Africa: a study of the international legal problems of state succession in the newly independent states of Eastern Africa. pp 14–15
Mamdani M (1996) Citizen and subject: contemporary Africa and the legacy of late colonialism
Mensah-Brown AK (ed) (1975) African international legal history
Miller JC (ed) (1980) The African past speaks
Mutua MW (1995a) Putting humpty dumpty back together again: the dilemmas of the post-colonial African state. Brook J Int Law 21:505
Mutua MW (1995b) Why redraw the map of Africa: a legal and moral inquiry. Mich J Int Law 16:1113
Offiong D (1980) Imperialism and dependency
Okoye M (1964) African responses. p 389
Oppenheim L (1955) In: Lauterpacht H (ed) International law: a treatise, vol I, 8th edn. p 555
Orentlicher DF (1998) Separation anxiety: international responses to ethno-separatist claims. Yale J Int Law 23(1):28–29
Rodney W (1981) How Europe underdeveloped Africa
Schieffelin HM (ed) (1974) The people of Africa
Shaw M (1986) Title to territory in Africa: international legal issues CrossRef
Thompson LA, Ferguson J (eds) (1969) Africa in classical antiquity
Thruston AB (1900) African incidents: personal experiences in Egypt and Unyoro. pp 170–171
Umozurike UO (1979) International law and colonialism in Africa. p 40
Umozurike UO (1993) Introduction to international law. pp 7–8
Westlake J (1894) Chapters on the principles of international law. p 149
Wheaton H (1855) In: Lawrence WB (ed) Elements of international law, 6th edn. p 16
Williams JF (ed) (1914) Memories of John Westlake
Wilmot P (1980) Ideology and national consciousness. p 189
- Interrogating Colonialism: Bakassi, the Colonial Question and the Imperative of Exorcising the Ghost of Eurocentric International Law
Dakas C. J. Dakas
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