International Law and Boundary Disputes in Africa

Gbenga Oduntan

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781135039547
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Africa has experienced a number of territorial disputes over land and maritime boundaries, due in part to its colonial and post-colonial history. This book explores the legal, political, and historical nature of disputes over territory in the African continent, and critiques the content and application of contemporary International law to the resolution of African territorial and border disputes.

Drawing on central concepts of public international law such as sovereignty and jurisdiction, and socio-political concepts such as colonialism, ethnicity, nationality and self-determination, this book interrogates the intimate connection that peoples and nations have to territory and the severe disputes these may lead to. Gbenga Oduntan identifies the major principles of law at play in relation to territorial, and boundary disputes, and argues that the predominant use of foreign based adjudicatory mechanisms in attempting to deal with African boundary disputes alienates those institutions and mechanisms from African people and can contribute to the recurrence of conflicts and disputes in and among African territories. He suggests that the understanding and application of multidisciplinary dispute resolution mechanisms and strategies can allow for a more holistic and effective treatment of boundary disputes.

As an in depth study into the legal, socio-political and anthropological mechanisms involved in the understanding of territorial boundaries, and a unique synthesis of an African jurisprudence of international boundaries law, this book will be of great use and interest to students, researchers, and practitioners in African and Public International Law, International Relations, and decision-makers in need of better understanding the settlement of disputes over territorial boundaries in both Africa and the wider world.

1 Africa: Birthing the empire of law and concept of territory

DOI: 10.4324/9780203776841-1

Why not study the acculturation of the Whiteman in a Black milieu, in ancient Egypt for example ¹

1 Cheikh Anta Diop, The African Origin of Civilisation Myth or Reality, Mercer Cook ed. (Chicago: Lawrence Hill Books, 1974), p. xvi.

In most academic literature, it would seem as if international laws have never had roots in Africa. More so, it seems as if international law only tangentially relates to Africa as a continent. Nothing in reality can be further from the truth. It has been demonstrated quite convincingly that much of what forms the basis of thinking in international ordering had its roots in Africa, with the influences of African thinking and legal practices to be found in what have developed into notions of sovereignty, jurisdiction, territorial control, war, truce, capitulation etc. The fact that this is not much acknowledged and discussed in academic literature is perhaps related to Diop’s admonition that ‘the West has not been calm enough and objective enough to teach us our history correctly without falsifications’. ²International law and, by extension, the wealth of principles and jurisprudence relating to international boundaries’ law, was born in Africa. International law has at least since antiquity and perhaps before, been continuously practiced in Africa and has involved its peoples, territories and political states in a number of fundamentally important ways. This assertion will certainly be controversial in some quarters but that itself is not a problem; for as Diop stated ‘the essential factor is to retrace the history of the entire nation (of mankind)’. ³

2 Diop, op.cit., p. xiv. 3 Parenthesis added. Ibid p. xvi. Many other authors have vociferously argued, and quite correctly so, that the history of international law remains incomplete until recognition of the contributions of non-western societies are engaged with in a more meaningful manner. See U. O. Umozurike, International Law and Colonialism in Africa (Enugu. Nigeria: Nwamife Publishers. 1979); J. Levitt (ed.), Africa: Mapping New Boundaries in International Law (Oxford and Portland: Hart Publishing, 2010); James Gathii, A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias, 21 Leiden Journal of International Law, (2008) p. 318; T.O. Elias, Africa and the Development of International Law (Leiden: Sijthoff Dobbs Ferry, NY: Oceana, 1972).

First, the primogeniture of law generally, and international law by extension, in primitive terms is naturally African. The monogenetic thesis of humanity even at the stage of the ‘homo sapiens-sapiens’ and the scientific conclusions about filiation deriving from DNA science makes compelling the argument that all other races in the world descended from black Africans. ⁴Africa is the birth place of mankind and inevitably the forum for the first meaningful intercultural exchanges between nations. Various nations and peoples over thousands of years logically must have related to each other at various levels in legally relevant situations, ranging from the organisation of trade and negotiation of disputes to the surrendering of one group’s territory and peoples to another. International legal practitioners and scholars like Adama Dieng have begun the tedious task of correctly recognising the pioneering importance of the continent in confident terms. He wrote:

4 Website: Ibid., p. xv. Both homo sapiens and our primordial ancestors, the australopithecines, who were a zoological group of small-brained erect running creatures originated from the high African Savannahs between one or two million years ago. Robert Ardrey, The Territorial Imperative: A Personal Inquiry into the Animal Origins of Property and Nations (London: Collins, 1969).

Africa is the world’s oldest continent and her nations, institutions and peoples are humanity’s first. Ancient African civilisations are responsible for founding the original logic, structure and method of statecraft for which modern human civilisation is structured. Africa’s contributions to human civilisation are indisputable and vast, spanning, for example, the areas of agriculture, arts, government, law, medicine, monotheistic religion and science. ⁵

5 Adama Dieng in his foreword to J. I. Levitt, Africa: Mapping New Boundaries in International Law (Portland, Oregon: Hart, 2010), p. vii.

Others like Professor Levitt, a respected scholar of international law and Africa, contemplates Africa as a subject and not simply an object of the field of international law – as a market place not a basket case. ⁶

6 See Dieng, ibid., p. viii.

Second, apart from primitive connections, the continent of Africa as a geophysical reality is host to ancient Egypt and the other neighbouring nations and political groups to which it was most closely related at all points of its historical development. Egypt, by nearly all universally recognised studies and across many disciplines, is the home of the ideas, concepts and practices in art, science, literature, law, politics and government that gave birth to Pythagorean mathematics, the theory of the four elements of Thales of Miletus, Epicurean materialism, Platonic idealism, Judaism, Islam and modern science. Letters of credit, for instance, existed among the black civilisations along the Nile including ancient Egypt. In time the concept spread through the ancient Greek to Roman civilisations, the Islamic civilisations and ended up in the modern manifestations we have in the world today. ⁷The origins of many of the world’s religions upon which much of the content of morality is determined and from which most of the world’s legal systems, including international law, derive their inspiration, are African. Persuasive research reveals that:

7 See generally J. Braithwaite and P. Drahos, Global Business Regulation (Cambridge University Press, 2001), pp. 45–7; see also M. M. Postan, Medieval Trade and Finance (London: Cambridge Univ. Press, 1973), p. 57; R. J. Trimble, ‘The Law Merchant and the Letter of Credit’, Harvard Law Review (1948), pp. 982, 984.

One needs only to meditate on Osiris, the redeemer-god, who sacrifices himself, dies, and is resurrected to save mankind, a figure essentially identifiable with Christ. A visitor to Thebes in the Valley of the Kings can view the Moslem inferno in detail (in the tomb of Seti I, of the Nineteenth Dynasty), 1700 years before the Koran. Osiris at the tribunal of the dead is indeed the ‘lord’ of revealed religions, sitting enthroned on Judgment Day, and we know that certain Biblical passages are practical copies of Egyptian moral texts. ⁸

8 Website: Ibid., pp. xiv–xv.

African participation in international relations indeed did not start with the pre-eminence of Egyptian empires; and obviously did not end with it. Before the age of European expansion to other continents and the Portuguese circumnavigation of Africa, Renaissance Italy had already become a common and frequent destination for scores of Ethiopian monks and dignitaries. These purveyors of the Ethiopian age of exploration approached European peoples as ‘… active agents of transcontinental discovery: interested in learning more about a region they regarded as the ultimate center of organized Christianity’. ⁹Historical facts like this ought not to be ignored in as much as they run counter to ideas of African and black inferiority that have quite unfairly represented legal epistemolology for much of the modern period. ¹⁰

9 Matteteo Salvadore, ‘The Ethiopian Age of Exploration: Prester John’s Discovery of Europe, 1306–1458’, Vol. 21, Journal of World History, No.4, (2011) p. 593. 10 Cf. Ibid. pp. 593–4.

1.1 International law and Africa

African concepts of justice have been sophisticated for several millennia. Few lawyers today are aware of the African origins of human legal ordering and foundations of inter-nation diplomacy. Fewer still are aware that the now famous statue of justice (depicted by the figure of a Greek goddess blindfolded and holding in one hand the balancing scale and on the other hand a sword) was for many centuries preceded by an Egyptian Goddess who also balances in one hand scales of justice and in the other hand a feather with which it weighs against the soul of all mortals when they face divine judgment. The similarities and conceptualisation of ideas are so striking that today’s copyright, design and patent lawyers will find no problems in identifying the intellectual property trail that suggests itself here. ¹¹

11 A correct understanding of the connections runs thus: ‘Justice stands as a quasi-religious, quasi-political icon. Of course, Justice is not a solitary icon in the Western tradition. Rather, she is one of a series of images, most in the female form, associated with powerful concepts of virtues and vices. Justice, like many of these images, traces her ancestry to goddesses. Her forerunners seem to have been Ma’at in Egyptian culture …’, Dennis E. Curtis and Judith Resnik, Vol. 96, The Yale Law Journal, No. 8 (Jul., 1987), p. 1729. Herodotus indeed correctly observed that the Greeks got the names of their gods from the Egyptians: S. Todd Lowry and Barry Lewis and John Gordon (eds.), Ancient and Medieval Economic Ideas and Concepts of Social Justice (Brill, 1998), p. 11. See generally Anna Mancini, Maat Revealed, Philosophy of Justice in Ancient Egypt (U.S.: Buenos Books, 2004).

1.1.1 Racialism and European appropriation of the ‘common law of mankind'

Despite the abundance of evidence, intellectual accounts of the contributions of Africa to the empire of human laws and international relations have been austere. This continuing situation was, however, carefully cultivated through concerted efforts at maintaining an ‘otherness’ by certain aspects of western scholarship and political leadership as part of the justification for the project of colonialism and latterly neocolonialism. Davidson pointed out:

In retrospect, the whole great European project in Africa stretching over more than a hundred years, can only seem a vast obstacle thrust across every reasonable avenue of African progress out of the preliterate and prescientific societies into the ‘modern world’. It achieved the reverse of what occurred in a Japan made aware of the need to ‘catch up with the West’. It taught that nothing useful could develop without denying Africa’s past, without a ruthless severing from Africa’s roots and a slavish acceptance of models drawn from entirely different histories … Africa’s own experience and achievements could teach nothing: it was ‘only evil and evil continually …’. ¹²

12 Basil Davidson, The Blackman’s Burden Africa and the Curse of the Nation State (Ibadan: Spectrum Books, 1992), pp. 42, 43.

It is important to note that the concept of the exclusivity of international law to European thinking is an engineered falsehood, conveniently deployed as part of the general imperial project of Western Europe in the past few centuries. There is incontrovertible evidence that the predominant position from as far back as the seventh century until the nineteenth century – even among European classical writers – was that international law is universal, based on natural law and is applicable to all nations. The writings of Grotius, ¹³Vitoria ¹⁴and Vattel ¹⁵clearly express the organic nature of international law as arising from shared universal values and traditions, emanating from various human civilisations. The classical European writers also perceived public international law not as a law of domination but as a law of order and the means of avoidance of anarchy and strife. It was realised that European imperialism had the potential to create both. In addition, the idea that international law had a specifically European character was most actively and fully developed in and around the nineteenth century on cue for the acceleration of an ongoing imperialist project of subjugation of other independent peoples and continents who were largely unaware of the full intentions of European rulers. It was at such a stage that the ‘satanic verses’ of European jurisprudence were penned by the likes of Wheaton, ¹⁶Westlake ¹⁷and Lorimer who amplified imperialistic thinking into what was regurgitated as facts. Lorimer wrote:

13 Grotius himself treated international law as universal and secular. See E. Nys, Les Origines du Droit International (1894), at pp. 151–9; A. Nussbaum, A Concise History of the Law of Nations (1954), at p. 86; Alexander Orakhelashvili, “The Idea of European International Law”, vol. 17 European Journal of International Law, 2 (2006), p. 316. 14 Vitoria pleaded that non-Christian nations in America were not to be treated as objects of conquest but ought to be regarded as nations with legitimate princes and that wars against them could only be waged against them only for just causes. 15 E. de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, Sixth American Edition, (Philadelphia: T & J. W. Johnson, Law Booksellers, 1844) pp. v, vii–viii, xiii, 148–149. 16 H. Wheaton, Elements of International Law (London: The Clarendon Press, 1866), at pp. 17–18. 17 J. Westlake, International Law (Cambridge, MA: The University Press, 1904), Pt 1, at pp. 40.

The sphere of plenary political recognition extends to all the existing States of Europe, with their colonial dependencies, in so far as these are peopled by persons of European birth or descent; and to the States of North and South America which have vindicated their independence of the European States of which they were colonies. The sphere of partial political recognition extends to Turkey in Europe and Asia, and to the old historical States of Asia which have not become European dependencies –viz., to Persia and the other separate States of Central Asia, to China, Siam, and Japan. The sphere of natural, or mere human recognition, extends to the residue of mankind, though here we ought, perhaps, to distinguish between the progressive and non-progressive races. It is with the first of these spheres alone that the international jurist has directly to deal. [However, he] must take cognisance of the relations in which civilised communities are placed to the partially civilised communities which surround them. He is not bound to apply the positive law of nations to savages, or even to barbarians...