The question of compensation to African countries
for being victims of colonization which occurred between the 18th and 19th
century was raised once again by some African leaders during the 64th Session
of the United Nations General Assembly which was held in September 2009 in New
York.
This path was championed by former Libyan Leader, Muammar al-Qadafi (RIP) who in
an address on that occasion called on the colonial powers to pay not less than 77
Trillion US Dollars to Africa in compensation for the ‘evil' effects of
colonial system in Africa. This is not the first time such a question has been
raised by the Libyan Leader at an international forum.
It was first raised when
the German government, about a decade ago, decided to pay compensation to
Jewish families who were victims of Nazi activities during the Second World
War. And it continues as a matter of concern to many independent African states
seeking support and international
consensus.
The matter has raised several questions with
different dimensions including, whether compensation to Africa is necessary and
feasible vis-a-vis the benefits derived from that system? What is the basis of
determination of the quantum and mode of distribution of the compensation among
the independent African states?
Do the colonial powers have the political will
and resources as individual entities to pay compensation to Africa even if it
is legitimate? These are important questions demanding answers but these are
not the focus of the present article. The author only discussed them briefly
setting the stage for an in-depth research and analysis.
The purpose of this article is to contribute to the
ongoing debate and discussions on the matter from a legal perspective but in a
balanced and open-minded manner with the aim to enlighten readers on the
matter. The focus is on whether we can qualify colonization as a "wrongful
conduct" for which responsibility or liability is attributable to the
colonizers? And on what legal ground is payment of compensation sustainable
under modern international law (precisely, after 1945)?
Before
I turn to the legal issues involved, a brief descriptive analysis of the
colonial policy in Africa would be helpful here to understand the trend,
reality and effectiveness of that system.
II
Colonial Policy in Africa
In the latter half of the 19th Century Africa become
the object of widespread colonial expansion. During the 1850s Great Britain
began its military campaign to conquer the Gold Coast, and the states of
Ashanti and Fanti were subdued. In 1874 the British colony of the Gold Coast
was formed. Ostensibly seeking to halt the slave trade, British forces occupied
Lagos, which in 1874 was placed under the control of the Governor-General of
the Gold Coast.
When the Suez Canal opened in 1869 – now the
shortest sea route to India and the Far East was through the Mediterranean –
the British sought to gain control of the waterway. With its possessions of
Gibraltar and Aden, Great Britain controlled the exits to the Mediterranean and
Red Sea. The Suez Canal, however, was commercially operated by a French
company. Adjacent to Egyptian territory, the Canal was controlled by the
Egyptian Government and the Turkish Kheidive (the latter had only nominal
control).
In its efforts to obtain its goal, the first thing
Britain did was to establish economic control over the Canal. Taking advantage
of the economic difficulties of Egypt, in 1875 the British Government bought
Egypt's shares in the Suez Canal Company, thus becoming the largest single
shareholder. In 1882, under the pretext of quelling an uprising in Alexandria,
British forces occupied Egypt.
British colonizers systematically robbed the African
colonies, transferring their entire economy to the service of British industry.
They directed the colonial states to rely exclusively on the export of
agricultural goods like cotton from Egypt, Cocoa from the Gold Coast and Ivoire
Coast, thus providing the industry of Great Britain with cheap and high quality
cotton fibre and cocoa products.
In 1875 Egypt was an exporter of grain, but by
1908 it was forced to import it. High tariffs were set for imported industrial
raw materials and machinery for local production, and this led to a decline in
the African industries. Existing records of this trend of economic relationship
bear adequate testimony to these facts.
British expansion in Africa was a government policy
and was also conducted by private capitalists like Cecil Rhodes. The British
South African Company, owned by Rhodes, was given rights and powers of
government in the area later called Rhodesia. Earlier, in 1886, the same rights
were acquired by the United Africa Company, which began to trade in the region
of the Niger Delta. In South Africa, British capitalists were eager to
establish po9litical control over the gold fields of Transvaal, which were
already in their power economically.
The Boer Government was not doing
everything it could to make the mines as profitable as possible. As a pretext
for was, the British raised the question of the status of foreigners, primarily
British, who arrived in Transvaal after the gold deposits were discovered, the
Boer Government denied the foreigners complete political rights, fearing that
the newcomers would eventually usurp the Boers. British propaganda tried to
convince public opinion that the government was fighting for the political
interests of the English in Transvaal, not the mercenary interests of Cecil
Rhodes and the Rothschilds.
In the 1850s Frances began to seize African
territory in Senegal. In 1857 the French took Dakar and began a war to conquer
the state of Kaior. The first victim of French capitalism in North Africa was
Tunisia, which was of considerable geographical importance with respect to the
Mediterranean. Since the 1860s Tunis had been in financial bondage to the
British and French capitalists.
Taking advantage of a skirmish with nomadic
Arabian tribes on the Tunisia-Algeria border in 1880, a French expeditionary
force was sent in to "help" and occupied the most important centres
of Tunisia. The French forced the local ruler to allow their forces to remain
in Tunisia and local determine foreign policy. Later Tunisia was formally
declared a protectorate of France. Already by the 1870s French colonialists
began to penetrate into Morocco, gradually bringing individual tribes under
their influence and utilizing feudal institutions to acquire land and
privileges.
Belgium also participated in the division of African
territory. In 1876 the King of Belgium, Leopold II, created the so-called
International Association for the Exploration and Civilization of Central
Africa. The real goal of the Association; however, was to seize and exploit the
Congo River Bain. By 1884 most of the Basin area had come under Belgian control.
But the mouth of the Congo River, with the diplomatic help of the British, was
ruled by the Portuguese.
In the 1880s Germany initiated its own colonial
policy. In 1883 the country founded a settlement in thee Angra Pequena region
in south-western Africa. Later the territory was made a German protectorate.
Taking advantage of the fighting between the leading
European powers to gain control over the last free possessions, in 1884 Germany
seized Cameroon. In this way German Southwest Africa was formed. In 1885 the
country took vast territories in the East Africa and laid the foundations for
another colony – German East Africa.
In the 1880s Italy, with British backing, began to
colonize Eritrea and Somalia.
In order to prevent the French from access to the
Nile Valley, in March 1891 Britain reached an agreement with the Italian
government to delineate spheres of influence in East Africa. Britain recognized
Ethiopia to be in Italy's sphere of influence and stipulated that the western
boundary of the Italian sphere be drawn at a sufficient distance to the East
from the headwaters of the Nile.
To cut off access to the Nile Valley from the
west, Britain concluded an agreement with Germany. In accordance with the
Anglo-German Treaty of 1893, the territory of Cameroon up to Lake Chad in the
north and the Shari River basin was declared to be in the sphere of German
influence.
The final clash between the British and French in
their quest to gain control of the Upper Nile occurred in 1898 when French
expeditionary forces marched out of Central Africa to the Nile. In early
September of that same year, the British crushed Arab forces and seized the
capital of the Sudan – Khartoum. Under pressure from England, French forces
retreated from the Upper Nile region.
In March 1899 the two countries reached
an agreement concerning mutual spheres of influence in Africa. The boundary
between French and \British possessions in Africa was primarily drawn along the
watershed between the Lake Chad and Congo River basins on one side, and the
Nile River basin on the other. France acquired part of the Sudan, which made it
possible for the country to unite its territory in North and West Africa with
its possessions in the central regions of the continent.
By the late 19th – early 20th centuries, all of
Africa had been divided among the imperialist powers, with Great Britain
acquiring the lion's share (as many as 37 million people inhabited British
territory in Africa). In West Africa Great Britain seized Nigeria, the Gold
Coast, Zambia and Sierra-Leone; in East Africa, the country controlled Kenya,
Uganda, Zanzibar and Somalia. Almost all of South Africa was a part of the
British Empire. Though formally a part of the Ottoman Empire, Sudan and Egypt
were in effect British colonies.
France had the second largest colonial empire in
Africa: West Africa, Equatorial Africa, Madagascar and a part of Somalia. Up to
17 million people lived on these French possessions.
Germany took Cameroon, Togo, Southwest Africa, and
East Africa (including the territory of Tanganyika), with an overall population
of approximately 10 million people. Belgium, Spain, Italy and Portugal also
owned colonies in Africa.
The only independent state in Africa was Ethiopia,
which defended its independence in an armed struggle with Italy. In late 1895
Italian forces began their advance into Ethiopia from Eritrea. Within a few
months the Italian expedition forces were defeated in a battle at Adua. In
October 1896 Italy was forced to conclude a peace agreement under which Ethiopian
independence was recognized.
An all-African organization emerged during the
fierce struggle against opponents to the unification of the African peoples.
The 1958 meeting of eight independent African states in Accra, the capital of
Ghana, marked the beginning of the formation of this organization.
At the first
inter-African conference held in Addis Ababa in May 1963, the Organization of
African Unity (OAU) was formed the largest regional organization among the
developing countries, OAU states its firm resolution to liberate the entire
African continent from foreign rule and to eliminate colonialism and
neo-colonialism in all its forms and manifestations.
The second phase of the national liberation
struggle, which began when the African countries started to acquire their
independence, was more complicated and bloody: the young states underestimated
the power of neo-colonialism.
Socio-economic problems proved to be entirely
difficult to overcome, and, in addition to the colonial legacy, it was
necessary to remove the obstacles hat had hindered the development of African
society since the pre-colonial period. Ethnic strife and tribalism complicated
the situation even more in some states.
III
The Aftermath of the colonial past
After the African states won their independence,
ruling circles in the former mother-countries were reluctant to give up their
positions. Thus, efforts were made to transfer power to political forces
considered to be reliable. The colonial powers tried to impose state and legal
institutions typical of bourgeois political and economic principles in the
newly free countries, to entangle them in unequal treaties and to draw them
into military blocs. The imperialist countries endeavoured to preserve the
economic backwardness and feudal and tribal order in the liberated countries.
After winning political independence, it was
important for the new state to attain economic independence. The colonial
legacy had a ruinous effect on the economic situation in the African countries.
Single corps and a one-sided and antiquated agricultural system made the new
states dependent on the world capitalist economy. Progressive forces in the
young states fought for full national revival, for radical economic and social
reforms, and for genuine political independence from the imperialist countries.
Typing groups of countries emerged in Asia and
Africa in the 1950s and 1960s: states undergoing radical socio-economic changes
and following a policy of socialist orientation; states developing along the
path of capitalism; and states remaining the possessions of capitalist states.
Each of these general groups possesses a broad spectrum of political and economic
situations.
As the countries of Africa became more politically
independent, they began to seek regional solidarity and to protest the
imperialist countries' policy of neo-colonialism. The new states were faced
with the urgent task of overcoming the backwardness inherited from the period
of colonial rule. Their need to develop
mutually beneficial types of economic cooperation demanded that they
unite.
Economic alliances made it possible for the developing countries to
construct modern industrial projects. Alone, the majority of these countries
had neither the financial base nor the corresponding market for optimal-size
enterprises. By taking advantage of the international division of labour on a
regional basis to achieve economic cooperation and integration the developing
states were able to accelerate their economic growth.
IV Evaluation of colonization in Africa
From the foregoing descriptive analysis, it is
evidently clear that colonization of Africa was an organized and effective
system lasting for a whole century in the interest of trade and commerce which
was promoted in England, the Netherlands, Germany, Belgium and France by
ruthless profit-making companies.
It may be argued that Colonization of Africa by the Europeans opened the continent to western civilization, formal
education, western democracy and may
further support this realities with the fact that countries in Africa such as
Ethiopia which were not effectively colonized are worst today than those
colonized in terms of development, peace and security. However, such arguments
must be weighed against the problems of eliminating the aftermath of the
colonial past which is very costly for Africa. The disadvantages weigh higher
than the advantages.
The independent African States are paying high prices in
terms of civil conflict (resulting from the arbitrary nature of the boundaries
by colonial powers in Africa), problems of governance (resulting from the
transfer of political power from colonial masters to favourite elites though
power was taken from traditional rulers through conquest or treaties),
backwardness (resulting from under-development, exploitation of human and
natural resources), distortion of the African cultural development (resulting
from the influence of European culture and religion), lost of respect and
identity (resulting from master-servant relationship and subjugation of
Africans), to mention but a few. It appears justifiable on those grounds to say
that colonization has done more harm than good to Africa.
V Some legal implications of colonization
The decolonization process was basically completed
by the 1960s after the landmark of the adoption by the UN General Assembly in
1960 of the "Declaration on the Granting of Independence to Colonial
Countries and Peoples", (GA Res. 1514 XV of 14). The resolution declares
among other things that:
"The subjection of people to alien subjugation,
domination and exploitation constitutes a denial of fundamental human
rights, is contrary to the Charter of
the United Nations and is an impediment to the promotion of world peace and
cooperation". From this day, colonization, whether direct or indirect, has
been qualified as a "wrongful act" and prohibited by international
law just as was done with slavery which was originally coalesced in the Vienna
Declaration on the Abolition of the Slave Trade in 1915, one of the flagrant
abuses of human rights. Such an act would lead to state responsibility. But the
question is whether the 1960 Declaration has a retrospective effect for the colonial
powers?
The law of state responsibility is concerned with
the determination of whether there is a wrongful act for which the wrongdoing
state is to be held responsible or liable and what the legal consequences are
(e.g. an obligation on the part of the wrongdoing state to restore the previous
situation or pay compensation), and how such international responsibility may
be implemented (e.g. through countermeasures adopted by the victim states such
as reprisal or restoration.
In the Spanish Zones of Morocco Claim (1925) 2 RIAA
615, Umpire Huber expressed the concept of state responsibility in the
following terms:
"Responsibility is the necessary corollary of a
right. All rights of an international character involve international
responsibility. If the obligation is not met, responsibility entails the duty
to make reparations.'
We can refer to the work of the International Law
Commission Draft Articles on State Responsibility (Yearbook of the ILC, 1979),
which represents an authoritative statement of the principles regulating state
responsibility, in particular in relation to the content, forms and degrees of
state responsibility. This can be supplemented by a considerable amount of case
law on the subject generated within the last century. Article 19(2) of the
Draft Articles states that:
Article 19(2) of the Draft Articles defines an
international crime as:
"An internationally wrongful act which results
from the breach by a state of an international obligation so essential for the
protection of fundamental interests of the international community that its
breach is recognized as a crime by that community as a whole ..."
Four practices are expressly identified as
international crimes, although these are merely illustrative and not
exhaustive. These are:
i) A
serious breach of the international rules created for the preservation of
international peace and security, such as the rules prohibiting aggression;
ii) A
serious infringement of the principles which safeguard the right of
self-determination of peoples, such as the rule prohibiting the establishment
or maintenance by force of colonial domination;
iii) A
serious breach on a widespread scale of an international obligation of
essential importance for safeguarding human beings, such as those prohibiting
slavery, genocide and apartheid; and
iv) A
serious breach of an international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those
prohibiting mass pollution of the atmosphere or of the seas.
In application of the above article, the colonial
powers were directly and effectively engaged in colonizing Africa for over
hundred years and the ‘good' and ‘bad' of that system can be imputed to the
colonial powers.
The actions of state organs, agencies and
representatives must he attributed to the state for the purposes of determining
international responsibility. Direct or indirect responsibility will devolve to
the states for:
i) Acts
of the executive, legislative and judicial branches of the government. (as in
Draft Article 6).
ii) Any
actions of the political sub-division of the state, such as individual federal
states or provinces (as in Draft Article 5).
iii) An
action of any organ, state employee or other agent of the government
functioning within their official capacity (as in
Draft Article 8).
Acts which are lawful under municipal law, but
unlawful under international law attract international responsibility and it is
no defense to an international delict that colonization was legitimate under
municipal law of the colonial powers. As the Court pointed out in the Polish
Upper Silesia Case (1926) PCI) Reports, Series A, NO.7:
‘…municipal laws are merely facts which express the
will of and constitute the activities of states in the same manner as do legal
decisions or administrative measures.'
Imputability for actions of agents and employees of
those states engaged in colonization extends in particular to the police and
the armed forces. In this respect, the following principles are important:
A
state is liable for the official actions of all agents no matter how minor in
rank (Draft Article 6). See, Massey Case (1927) 4 RIAA 15.
However, it would be difficult to determine whether
the wrongdoing by the colonial powers constitute a breach of an international
obligation of those powers. This is because the resolution itself was adopted
by 89 votes to 0, with nine abstentions. The abstaining states include Belgium,
France, Portugal, Spain, the UK and US (virtually all the states engaged in
colonialism abstained).
The colonial powers did not give consent to be bound
by the resolution and it may apply only between parties to the agreement. As a general principle, a treaty does not
establish rights or duties for third states without their consent (Article 34
of the Vienna Convention on the Law of Treaties, 1969). This rule is expressed
in the maxim pacta tertiis nec nocent nec prosunt, and is supported by a number
of international decisions. See especially, the Free Zones of Upper Savoy and
the District of Gex Case (1932) PCIJ Reports, Series A/B, No. 46.
A number of
exceptions to this rule have been established both under the Convention and
also in customary law. Cumulatively, these include the following:
(i)
Multilateral treaties declaratory of customary law will apply to
non-parties, although in fact they are not bound by the treaty itself, but
rather the underlying customary principles. See the North Sea Continental Shelf
Cases (1969) ICJ Reports, p.3.
(ii)
Multilateral treaties which are instrumental in the creation of new
customary rules may ultimately bind third parties on a customary basis, for
example, the Hague Convention on the Rules of Land Warfare 1907.
(iii)
Emergence of a jus cogens: Article 64 of the Convention stipulate that,
where a new peremptory norm of general international law has emerged, any
existing conflicting conventional obligations are terminated.
Conclusion
Based on the expose' and critical analysis, it may be
argued that imputability of the wrongful act of colonization to colonial powers
will pass the test for responsibility whether they give consent or not to
international agreements that criminalize and prohibit colonization. But the
question that remains difficult to answer is whether those wrongful acts
(colonization) can also pass the test of time (have retrospective effect)? This
seems impossible in the present case.
It is important to note that the request for
compensation for colonizing Africa, even if on any justifiable ground as shown
in this paper, will require not just international law but most importantly the
political will of the colonizers, united effort of the independent African
States and support from the entire international community.
This dream is not
easily achievable (not in the shortest time) as envisaged by some African
leaders because of the complexity of the issues. Africa was not the only victim
of colonization and in the history of mankind people have been colonized by one
another formally and non-formally. More so, where African States have also
benefited in one way or the other through the relationship.
Alternatively, the African states must be able to
strategically attract the colonizers to become more committed in their
assistance to them for a speedy development on the continent.
During the visit
of the US President Barack Obama to Ghana in 2009 he made it clear that the
destiny of Africa lies in the hands of Africans themselves. African states need
to develop mutually beneficial types of economic cooperation which also demand
that they unite.
Economic alliances within and outside Africa would possible
lead African countries to construct modern industrial projects instead of
wasting their energy in fighting for compensation for colonization.
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