P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v6i2.118
UNDRIP AND HISTORIC TREATIES:
The Moral Imperative To Legitimize The Human Rights Of Indigenous People To Self-Determination
EMMANUEL C. OBIKWU
Barrister & Solicitor of Supreme Court of Nigeria, London, United Kingdom Email: [email protected]
Abstract: The United Nations Declaration on the Rights of Indigenous Peoples provides a reasonable template for remedying the perceived injustices indigenous groups assert that they face in post-colonial states. In certain cases, indigenous peoples have claimed that they entered into ‘treaty relations’ with European colonizing powers like the United Kingdom.
Those ‘treaties’ or agreements gave them specific rights as a condition for the surrender of indigenous sovereignties to imperialists. The further argument is that the post-colonial state ought to recognize and preserve the rights encapsulated in those treaties. This article highlights some of these rights as enunciated by UNDRIP, especially the right of internal self-determination. It looks at the significance of ‘historic treaties’ especially highlighted in the case of Cameroon v Nigeria etc., a dispute decided by the International Court of Justice at The Hague. It looks at treaties made by traditional authorities in Southern Nigeria and cross-references those made by Native Americans of Canada. The British imperial Crown was at the centre of the jurisprudence of these historical treaties. The implication of those indigenous treaties and their current significance. It contends that the concept of indigenousness has been determined by European colonialism. The concept does not easily fit in with the African continent, especially south of the Sahara, where Africans see themselves as indigenous. To be Indigenous in the end will depend on degrees of indigeneity, identity, self-identification, and other factors. The indigenous rights people have received through UNDRIP presents a substantive case for their legitimation in the post-colonial state. To give effect to the right of internal self-determination of indigenous peoples, the Belgian Thesis and the repatriation proffered the measure of sovereign powers back to indigenous peoples and their traditional authorities – The Kings, Chiefs, and Elders that initially surrendered their sovereignties to the British imperial Crown.
This is suggested as a way forward in such countries as Nigeria, where there are ongoing clamours for the constitutional restructuring of the country by non–state actors.
Keywords: UNRIP, Historic Treaties, Legitimize The Human Rights, Indigenous People, Self-Determination
Abstrak: Deklarasi PBB tentang Hak-Hak Masyarakat Adat (The United Nations Declaration on the Rights of Indigenous Peoples-UNDRIP) menyediakan kerangka yang masuk akal untuk memperbaiki ketidakadilan yang dirasakan oleh kelompok-kelompok adat di negara-negara pasca-kolonial. Dalam kasus tertentu, masyarakat adat mengklaim bahwa mereka melakukan ‘perjanjian hubungan’ dengan penjajah Eropa seperti Inggris.
‘Perjanjian-perjanjian’ atau kesepakatan-kesepakatan tersebut memberikan hak-hak khusus kepada masyarakat adat sebagai syarat penyerahan kedaulatan pribumi kepada kaum imperialis. Argumen lainnya adalah bahwa negara pasca-kolonial harus mengakui dan melestarikan hak-hak yang dirangkum dalam perjanjian-perjanjian tersebut. Artikel
ini membahas beberapa hak-hak ini sebagaimana dinyatakan oleh UNDRIP, terutama hak penentuan nasib sendiri secara internal. Artikel ini melihat pentingnya ‘perjanjian bersejarah’ yang secara khusus dikaji dalam kasus Kamerun v Nigeria dll., perselisihan yang diputuskan oleh Mahkamah Internasional di Den Haag. Kasus ini terlihat pada perjanjian yang dibuat oleh otoritas tradisional di Nigeria Selatan dan referensi silang yang dibuat oleh penduduk asli Amerika di Kanada. Kekaisaran Inggris berada di pusat yurisprudensi dari perjanjian-perjanjian bersejarah ini. Implikasi dari perjanjian- perjanjian adat tersebut dan signifikansinya saat ini menyatakan bahwa konsep pribumi telah ditentukan oleh kolonialisme Eropa. Sulit untuk konsep tersebut cocok dengan benua Afrika, terutama Sahara Selatan, di mana orang Afrika melihat diri mereka sebagai pribumi. Menjadi Pribumi, pada akhirnya, akan tergantung pada derajat kepribumian, identitas, identifikasi diri, dan faktor-faktor lainnya. Hak-hak masyarakat adat yang diterima melalui UNDRIP menyajikan kasus substantif untuk legitimasi mereka di negara pasca-kolonial. Untuk melaksanakan hak penentuan nasib sendiri internal masyarakat adat, Tesis Belgia dan repatriasi mengajukan kekuasaan berdaulat kembali ke masyarakat adat dan otoritas tradisional mereka, para raja, kepala, dan sesepuh yang awalnya menyerahkan kedaulatan mereka kepada kekaisaran Inggris. Hal ini direkomendasikan sebagai solusi di negara-negara seperti Nigeria, dimana sedang berlangsung tuntutan untuk restrukturisasi konstitusional negara oleh aktor non-negara.
Kata Kunci: UNRIP, Perjanjian Bersejarah, Melegitimasi Hak Asasi Manusia, Masyarakat Adat, Penentuan Nasib Sendiri
INTRODUCTION
The aim of this article is several, firstly, taking into view the provisions of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)1 it tries to reconcile them with so called historic treaties, contending thereby that there is a moral obligation not only on signatories to the declaration, but all countries across the globe, with indigenous populations to legitimize the rights of indigenous peoples encapsulated in those treaties in the respective national jurisdictions. It looks more specifically at the right of self – determination outlined in the document and suggests that the document be a basis or a spring board for the articulation of this particular right in domestic constitutions or jurisdictions of concern. Under the principle of self- determination is the expression in the form of internal self- determination. Which it is argued, should be applied to indigenous peoples. Related to this if not contiguous with it are the jurisprudential arguments in favour of the continued importance of these treaties and the rights they engendered at the time they were entered into. The entry into force of UNDRIP, to some extent validates those rights. This topic is of importance to some indigenous people in relationship to the post-colonial state on questions of constitutional restructuring, the devolution of political and economic powers and sovereign relations between such indigenous peoples and the neo-colonial state. This particular matter for instance is being pursued by non- state actors championing the cause of indigenous people in such States as Nigeria.2
1 ‘UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : Resolution / Adopted by the General Assembly, 2 October 2007, A/RES/61/295, Available at: Https://Www.Refworld.Org/
Docid/471355a82.Html’; Oriola O Oyewole, ‘Navigating The Waters: International Law, Environment and Human Rights’ (2021) 6 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
2 Movement for the Survival of the Ogoni People (MOSOP) and the Ogoni Bill of Rights Movement for the Survival of the Ogoni People (MOSOP) and Ogoni News and Resources @ www.mosop.org, The Ijaw Youths of the Niger Delta and the Kaiama Declaration @www.unitedijaw.com/kaiama.htm Kaiama Declaration (unitedijaw.
com), Lower Niger Congress @Lower Niger Congress – A movement for self actualization of Low Niger people, Nigerian Indigenous Nationalities Alliance for Self- Determination @ About - (ninasffn.org), Indigenous People of Biafra (IPOB) @Indigenous People of Biafra – Indigenous People Of Biafra Government (ipobgovernment.org)
In going about this narrative then, the first part of the discussion examines some of the relevant articles of UNDRIP including those on Self - Determination. Secondly, the work attempts to identify indigenous people, a feat that is by no means easy to accomplish as UNDRIP does not define the term. Thirdly, the treatise then looks at some of the ‘historic treaties’ entered by some of the African rulers and communities that became Southern Nigeria and Great Britain, the imperial power that colonized the territory, in the nineteenth and early twentieth centuries. The continued significance of these historical treaties and their relevance to date is emphasised in the light of the decision and observations made by the International Court of Justice in the Case of the Land and Maritime Boundary Between Cameroon and Nigeria [With Equatorial Guinea intervening].3 The Belgian Thesis and its application to the notion of indigenous peoples’ self- determination then constitutes the final part of the article.
INTRODUCTION TO UNDRIP
In thinking about the rights of indigenous peoples the impact of European colonialism has not only influenced the promulgation of UNDRIP but also our understanding of who indigenous people are in international law. Western Imperialism and Colonialism meant the dispossession of the lands, territories and resources of indigenous people and thus depriving the latter not only of their way of life, but also from exercising the rights and aspirations outlined in the Declaration.4 By alluding to this history from the preamble, the Declaration reveals its character as essentially a remedial instrument.
Thus, for some authors when discussing UNDRIP they have seen it as a corrective treatise in that it attempts to remedy the historic injustices indigenous people have suffered as a result of Western Colonialism and the subsequent post –colonial states that emerged thereafter5 on the lands of indigenous people. That is, the new geographical boundaries indigenous peoples now find themselves hemmed in and constrained by. Similarly, other authors see indigenous rights outlined in the UN Declaration from a historical context or perspective as aspirations to correct and resolve grievances and alleged wrongs through corrective justice for instance.6 In summation the argument is to the effect that indigenous peoples rights encapsulated by UNDRIP is the consequence of population upheavals originated by European colonialism. Conquests, invasions, the loss of lives of indigenous inhabitants, the dispossession and displacement in such places as North and South America and Australia being examples.7 International law having permitted the settler and post-colonial states to become fully operational, international attention should now re-focus on those groups that had become excluded from the main stream of public life and had been consigned to neglect in post-colonial states. When these groups initiated arguments for recognition and redress, they contended on the moral grounds of being first people who were dislodged by European subjugation and colonialism.8 Hence, the International effort for the recognition of indigenous rights has climaxed in the adoption by the United Nations of the United
(Outlawed by the present Federal Government of Nigeria) being examples.
3 Land and Maritime Boundary Between Cameroon and Nigeria, Cameroon (& Equatorial Guinea intervening) v Nigeria [2002] ICJ Rep. 303.
4 See further D Keys, ‘Forgotten Anniversary: The Birth of Western Imperialism’ (2021). In the Independent (Newspaper) Available at Forgotten Anniversary: The Birth of Western Imperialism (Msn.Com) @ Https://
Www.Msn.Com/En-Gb/News/Spotlight/Forgotten-Anniversary-the-Birth-of-We’.
5 S J Anaya and R J Williams, ‘Study on the International Law and Policy Relating to the Situation of Native Hawaiian People @https://Law.Arizona.Edu/Sites/Default/Files/Oha_iplp.Pdf. at I’.
6 L Brimlayer, ‘Groups, Histories, and International Law’ [1922] Cornell International Law Journal; M E Turpel,
‘‘Indigenous Peoples’ Rights of Political Participation and Self Determination: Recent International Legal Developments and Continuing Struggle for Recognition’’ [1992] Cornell International Law Journal.
7 F Viljoen, International Human Rights Law in Africa (2nd edn, Oxford University Press 2012).
8 ibid
Nations Declaration on the Rights of Indigenous Peoples9 in September 2007.10 Although non-binding, it ‘has the look and feel of hard treaty law’.11 It was adopted by 144 member states voting in favour, 4 against and 11 abstentions.12 It is noted that Nigeria and Kenya were among the countries that abstained.13
The preamble to UNDRIP sets the framework for equity and justice. It holds that among other things that indigenous peoples are equal to all other peoples, whilst recognizing the right of all peoples to be different, indigenous people are no exception in this regard and should be respected as such. It affirms too that all peoples contribute to the variety and wholesomeness of civilizations which form the common mosaic of humankind. It states that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, and morally condemnable and are socially unjust. Indeed, the Declaration can be seen as a charter or call for the equal treatment of all races and peoples regardless of differences and peculiarities.14
The preamble engages the fact that the historic injustices indigenous peoples have suffered, has prevented them from exercising, in particular, their right to development in accordance with their own needs and interests. Furthermore, it recognizes the pressing need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.15 It in addition, acknowledges the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive agreements with States.
The preamble of UNDRIP calls for the respect of indigenous states ‘historical treaties’ and modern compacts.16 It peaks by acknowledging their right to self – determination that it is equally applicable to indigenous peoples, in whatever ways this concept is expressed under the United Nations Human Rights system.17
UNDRIP and Self- Determination
One of the rights advocated by UNDRIP is that of Self – Determination. In the light of Article 1, the Declaration, affirms the applicability of the rights of freedom, equality and non-discrimination. It holds that, as a matter of equality, the right of self-determination is applicable to indigenous peoples as it is to all other peoples.18 It should be noted though, that this right has certain conditions to be met in international law. Thus, Article 3 claims for indigenous people the same rights of self-determination that is affirmed in the common article of the widely ratified international human rights covenants that, as a right of all
9 ibid 229
10 ‘UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : Resolution / Adopted by the General Assembly, 2 October 2007, A/RES/61/295, Available at: Https://Www.Refworld.Org/
Docid/471355a82.Html’ (n 1).
11 J. Hohmann and M. Weller (eds.) (ed), The UN Declaration on the Rights of Indigenous People: A Commentary (Oxford University Press 2018).
12 ibid
13 See ‘A Shuiabu Ogoni: Nigeria Opposes Indigenous Rights Declaration (2007) <https://Unpo.Org/Article/6763>
Nigeria’s Objection Appears to Be on the Grounds Discussed by This Article – among Others, the Self- Determination of Indigenous People and That All Niger’.
14 UNDRIP Preamble 15 ibid
16 See ‘Official Records of the General Assembly, Sixty-First Session, Supplement No. 53 (A/61/53), Part One, Chap.
II, Sect. A. A/RES/61/295’.
17 ibid
18 Articles 2, 3 and 4; D Keys (n) 4
peoples it is also applicable to them.
Article 3 explains that Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. By Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. By Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
However, Anaya commenting on the right of Self- Determination as concerning indigenous peoples states that it is of a different genre.19 He argues that the international indigenous human rights regime stands apart from the regime of decolonization that exists on the basis of article 73 of the UN Charter, which pertains to “territories whose peoples have not yet attained a full measure of self- (iii) government.” That the two human rights regimes (that is of colonized peoples and indigenous peoples) are grounded in the right of self- determination, but the decolonization regime is concerned primarily with doing away with conditions of classical colonialism in the administration of entire territories that are deemed non self-governing, including, in general, all the inhabitants with substantial roots in the territory. Whereas the indigenous rights regime addresses the concerns of indigenous peoples in particular, independently of the decolonization procedures advanced by article 73 in regard to the territorial administrative units in which they live.20 Similarly, the Nigerian Representative that critiqued and opposed the draft copy of UNDRIP had contended among other things that the principle of self –determination applies narrowly to peoples under colonial and foreign occupation. That the UN Trusteeship as propounded in Article 77 of the United Nations Charter21 and non-self-governing territories under Article 73 were evidence to this effect. That the Self- Determination provisions in UNDRIP can be seen as a blank cheque to clamour for self- determination or the secession of the 371 tribes of Nigeria, who are indigenous.22 That:
“The 371 indigenous tribes of Nigeria exercised their right of self-determination on Oct. 1, 1960 when the Federation of Nigeria was granted independence by the colonial power, Great Britain.”23
These observations though interesting to note are not conclusive. It has been argued to the contrary by others. Higgins for instance states that with regards to self –determination and decolonization that self- determination has meant more than independence from colonial rule or other post –colonial status, that the concept has meant the free choice of peoples to determine their political status.24 That beyond decolonization the entitlement is also to ‘freely pursue their economic, social and cultural development.’25
But it can also be further contended, that with respect to self –determination and it
19 S J Anaya and R J Williams (n 5).
20 ibid
21 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/
docid/3ae6b3930.html
22 ‘A Shuiabu Ogoni: Nigeria Opposes Indigenous Rights Declaration (2007) <https://Unpo.Org/Article/6763>
Nigeria’s Objection Appears to Be on the Grounds Discussed by This Article – among Others, the Self- Determination of Indigenous People and That All Niger’ (n 13).
23 ibid
24 R Higgins, Problems & Process: International Law and How We Use It (Clarendon Press 2001).
25 ibid
application to indigenous peoples, all options outlined above for its attainment should be open to them also. For there are varieties of indigenous peoples, as we shall see, and not just those Anaya has in view: those in the former classic European Settler Colonies in North and South America, Australia, New Zealand or even the Hawaiian Islands. As Higgins points out with respect to self – determination it is a constant entitlement that requires that a free choice be afforded to people on a continuing basis, as to their system of government in order that they can determine their economic, social and cultural advancement.26 She cites Articles 1 and 25 of the International Covenant on Civil and Political Rights27 to buttress her point that both Articles are mutually contingent and should be read together.28
According to Daes, the restoration of indigenous self-determination entails a process: One through which indigenous peoples are able to join with all other peoples that make up the state on mutually –agreed upon terms, after many years of isolation and exclusion.
This process does not require assimilation of individuals, as citizens like all others but the recognition and incorporation of distinct peoples in the fabric of the State on agreed terms.29
Note the United Nations documents affirm the fundamental significance of self- determination of all peoples.30 Self– determination, in this context does not impugn the principles of territorial integrity and sovereignty of States.31 In bringing this section to an end it is averred that because it is a resolution of the General Assembly and not a formal treaty, UNDRIP is itself not legally binding. It does however have legal significance since it represents an authoritative synthesis of the human rights norms found in various treaties, beginning with the UN Charter32 and their treatment of indigenous peoples.33
Of its main provisions, the Declaration may be interpreted as expressive of general principles of international law, State responsibility deriving from treaties and contributing to the crystallization of customary international law.34 These notions are apparent in the preamble as it is in the preliminary articles acceding to indigenous peoples all the rights attainable under international human rights law whether as a collective or as individuals.35 This collective/group and individual acknowledgement indicates the complexity of seeking to see indigenous rights, as merely individual.36 UNDRIP does not directly confer indigenous status as stated hitherto but leaves it to the national domestic jurisdictions to carry through the legislative modalities. Thus, Article 38 encourages states to take the relevant measures, including legislative measures, to achieve indigenous status recognition37 and indigenous rights.38
26 Ibid 120
27 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html.
28 Article 1 of the Covenant is on Self – Determination Article 25 speaks of voting and participation in public affairs, for every citizen. R Higgins (n 24), 120-21.
29 E A. Daes, ‘“Some Considerations on the Right of Indigenous Peoples to Self- Determination “’ (1993) 3 Transnational Law & Contemporary Problems 1.
30 Preamble to the UNDRIP 2007 Acknowledges the significance of Human rights instruments emanating from the UN as well as the Vienna Declaration and Programme of Action [A/CONF.157/24 (Part I), chap. III].
31 UNDRIP Articles’ 3,4,5 and 46
32 UN Charter United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI fn21.
33 S J Anaya and R J Williams (n 5), 4; ‘Report of the Special Rapporteur on the Rights of Indigenous People; James Anaya, UNDoc. A/HRC/9/9/(2008) PARAS. 18-43’; ‘Indigenous Peoples, UN Doc.A/68/317 (2013) (Report of the Special Rapporteur on the Rights of Indigenous People) Paras. 62-65’;
34 S J Anaya and R J Williams (n 5), 4.
35 Article 1 UNDRIP
36 UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23.
37 Article 33 UNDRIP 38 Article 38
MEANING OF INDIGENOUS PEOPLE
There is no formal and universal legal definition adopted to conceptualize indigenous peoples. However, such terms as “native”, “tribes”, “aboriginal” are categories that might reflect indigenousness and are therefore of relevance to the discussion of the term
“indigenous”. For instance, the term indigenous is taken from the Latin “indigena” meaning
“born in a country or “native”.39 The Oxford English Dictionary defines indigenous as peoples or products produced naturally in a land or region; native or belonging naturally to the soil, region etc.40 It is used primarily to apply to Aboriginal inhabitants or natural products.41 Thus, the notion of indigenous is connected with “native”. The Oxford Reference Dictionary defines “native” as inborn, innate, and natural. Secondly, it connotes birth;
belonging to one by right of birth. Thirdly, born in a particular place, indigenous: of the natives of a place. Furthermore, the term native is seen as derogatory and a throwback of the era of European imperial and colonial domination, a native in this particular context is a member of the non – European race or less civilized indigenous people; (in South Africa) a Black42 (African). The term aboriginal person, connotes an original, a native or indigenous person.43
In a familiar vein Black’s Law Dictionary sees an ‘Aborigine’ or ‘Aboriginal in the context of being the descendant of the earliest –known indigenous inhabitants of a country.44 Aboriginal Person or Aborigine in Australia connotes in law a member of the aboriginal race of Australia, and an Aboriginal person in Canada is an original, a native or an indigenous person.45 The terms indigenous and indigenous rights have a particular connection to history, underlined by European colonial conquests.46 Thus, indigenous came to be defined in opposition to those who came later [second people] and who dislocated the first peoples through conquest and colonialism. Juxta-positioning the culture of settler societies with that of indigenous communities, the ‘primitive’ cultural distinctiveness of a particular group emerged as a further defining feature denoting indigeneity.47
Thus, with the notions that the word “indigenous” conjures up translating indigeneity into legal concepts and rights has, according to Saul, proved daunting.48 That law is in the business of conferring rights and obligations on people and other actors like governments, corporations and organizations. Legal definitions determine who is entitled to rights in critical resources such as land and water, the exercise of traditional knowledge, cultural practices etc. Recognizing who is indigenous can be of importance in assisting claimants of indigenous status to assert their rights.49
It is suggested too that the word “indigenous” is generic. Indigenous people are understood to be descendants of the populations that inhabited the country or a geographical region to which the country belongs at the time of conquest or colonization, or the establishment of
39 B Nkwae, ‘San Bushmen Are Not Forever” Human Rights Perspective of Land Access Issues of Hunter-Gatherer in Southern Africa” in L. Lindholt, S Schamburg-Muller (Editors) Human Rights in Development Yearbook ( Martinus Nijhoff Publishers, 2003).
40 Ibid ; Oxford English Dictionary 2003
41 ‘Oxford English Dictionary <http://Www.Oed.Com/View/Entry/94474?RedirectedFrom=indigenous#eid>’.
42 JM Hawkins (ed), The Oxford Reference Dictionary (Clarendon Press 1986).
43 D. A. Dukelow and B. Nuse, The Dictionary of Canadian Law (2nd Edition Carswell, 1995) 2.
44 B. A. Garner, (Ed.) Black’s Law Dictionary (10th Edition West Publishing, 2014).
45 Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Section 3; DA Dukelow and B Nuse, (Eds.) Dictionary of Canadian Law 2nd Edition.
46 F Viljoen (n 7), 228-229.
47 ibid
48 B Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Hart Publishing, 2016) , 23.
49 Ibid 22-23
present state boundaries.50 Furthermore, and irrespective of their legal status, indigenous peoples retain some or all of their own social, political, economic and cultural institutions.
Among people known as “indigenous people” are the “Native” Americans of both North and South America, the Innuit, Sami and other groups who have settled in the Artic regions from Alaska and Canada through Northern Scandinavia, Northern Russia and Siberia, the Australian Aborigines, and the Maori of New Zealand.
According to Bartlett, indigenous people is the expression used to connote the Aboriginal People of Australia, Tasmania and the Torres Strait Islanders.51 In this context, therefore, the term ‘indigenous’ comprises these various peoples in pre-colonial and post-colonial societies designated for instance as natives in the Americas and aborigines in Australia.
Many indigenous people exist in Africa and in Asia, but there is disputation over the scope of the term as it applies to them.52 Even though Anaya, has identified the Masaai of Kenya and Tanzania as example of indigenous people in Africa,53 there are important differences in the context, meaning, and the use of the concept of ‘indigenous’ in the Americas, Asia and in Africa. These differences have had significant bearing on the indigenous rights movement in Africa. But as a preliminary observation in Africa in a historical sense, under colonial rule the non – European native inhabitants of colonies were known as the indigenes or indigenous inhabitants or even natives.
Thus, it is reported for example, that when asked to sign the International Labour Convention (ILO Convention) 107 on Indigenous People, the Government of Botswana refused to sign claiming that everybody in the country is indigenous. The definition of indigenous involving terms like being in close relationship with the land, having distinct language and cultural identity, attached to Ancestral land,54 these being features of pre- colonial African societies most especially those south of the Sahara Desert.
Kingsbury was of the view that:
The choice and evolution of an overarching self-conception to unify the international political movement of indigenous peoples has necessarily involved abstracting from a highly diverse range of self-understandings and political discourses among different groups.55
Thus, there is a wide variety of definitions in national laws. Moreover, despite various efforts, the international community has never agreed a comprehensive legal definition of indigenousness. The International Court of Justice (ICJ) has not considered the question, partly because it is technically difficult to agree on a definition which is neither under representative nor over inclusive. That is to say, too narrow so it excludes some groups that ought to be recognized or too wide that it is may be open to abuse or fail to provide meaningful differentiation.56 Under international law, definitions are a problem where any common concept of indigenous must embrace the vast diversity of people worldwide
50 A Eide, ‘The Framework Convention in Historical and Global Perspective’ Marc Weller (Ed.) The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities.
(Oxford University Press, 2006) 43.
51 R J Bartlett, Native Title in Australia (3rd Edition Lexis Nexis: 2014) 1.
52 Ibid 43, 44
53 S J Anaya and R J Williams (n 5).
54 B Nkwae, ‘San Bushmen Are Not Forever” Human Rights Perspective of Land Access Issues of Hunter-Gatherer in Southern Africa” in L. Lindholt, S Schamburg-Muller (Editors) Human Rights in Development Yearbook ( Martinus Nijhoff Publishers, 2003) (n 39), 182
55 B. Kingsbury, ‘ Indigenous People and International Law: A Constructivist Approach to the Asian Controversy ‘ (1998) 92 American Journal o f International Law. 414 at 421-422.
56 Saul (n. 48), 25
holding out to be indigenous people. It is estimated that there are 370 million indigenous people in 90 countries speaking 4000 languages and comprising around 500 distinct groups.57
About definitions, there is a consensus in international law and institutions, that the term
“indigenous,” or similar terms such as “native” or “aboriginal” (as in the domestic legal regimes of many countries) has long been applied to a particular category of humanity that connote a particular set of experiences grounded in historical subjugation by colonialism, or something similar to colonialism.58 In the contemporary world, indigenous peoples are recognized and identify themselves as such, by averring to identities that pre-date their colonial domination by other groups and the resulting narratives that have challenged their cultural survival and self-determination as distinct people.59
Definitions under the ILO Conventions
The International Labour Organization Convention 107 of 195760 is of relevance in highlighting the interconnectivity of concepts discussed in the preceding section.
Thereunder, indigenous and tribal people are classed together. Firstly, tribal people are referred to as members of tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community. Furthermore, their status is regulated wholly or partially by their own customs or traditions or by special laws or regulations. With respect to the term ‘indigenous people’, the Convention sees them as members of tribal or semi-tribal populations in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation.61 Moreover, irrespective of their legal status, indigenous people live more in conformity with the social, economic and cultural institutions of that time (that is pre-colonial) than with the institutions of the nation to which they now belong.62 What this Convention demonstrates is the close contiguity or interconnectedness of the terms
“indigenous” and “tribal” or “semi- tribal” to the point that, from the wordings of the cited sections, indigenous populations were designated as being tribal people. Hence, all three categories of peoples were designated as the ‘population concerned’.63 This goes a long way in bringing out the historical affinity of the terms which, when this article considers their application to Africa in general and Nigeria in particular with regards to the multi- indigenous environment, the interconnectivity becomes evident.
However, for having assimilationist implications with majority populations, Convention 107 has been discredited.64 For instance, such Articles as 1(2), 4, and 5 speak of the progressive integration of the concerned groups in to States.65 The Convention’s fundamental fault was that it mirrored the values prevalent at the time it was adopted, ignoring indigenous viewpoints in favour of integration and assimilation.66 ILO Convention (No. 169) of 198967
57 Ibid 23
58 J Anaya, International Human Rights and Indigenous Peoples: The Move toward the Multicultural State (2015) <
Http://Arizonajournal.Org/Wp-Content/Uploads/2015/11/Anaya.Pdf (n.) 53 above, 13.
59 ibid 13 - 14
60 ILO Indigenous and Tribal Populations Convention 107 of 1957 [No.107].
61 See Article 1 (a) (b) of Convention ILO 107 62 ibid
63 ibid Article 1(3)
64 See ILO Indigenous and Tribal Populations Convention 107 of 1957 [No.107] (n 60).
65 Ibid & F Viljoen (n 7), 229.
66 L Swepston, ‘The ILO Indigenous and Tribal Peoples Convention (No.169): Eight Years After Adoption’ in: C.P.
Cohen (Ed.), Human Rights of Indigenous People ( Transnational Publishers, 1998) 17-36 at P19.
67 Convention 169 of 1989
(hereafter referred to as ILO no.169) adopts a different approach to ILO Convention 107.
It starts by demarcating indigenous people from tribal peoples. Concerning “indigenous peoples”, the Convention sees them as;
Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country. [Or] a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.68
By the same Article 1, it is provided further that “tribal peoples” are those peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations. Furthermore, with respect to the two terms, self – identification as indigenous or tribal is to be regarded as a fundamental criterion for ascertaining or determining the groups to which the provisions of the Convention apply. It should be borne in mind however, that “Peoples” in the Convention is not to be interpreted or seen as having any implications with regards the rights that may attach to the term under international law. These two terms – indigenous and tribal - by virtue of the ILO Convention 169 are not equivalent. For indigenous people the emphasis is on continuity from pre-colonial times and the retention of some or all of their social, economic, cultural and political institutions, regardless of their legal status in the post-colonial state. For tribal people, their post-colonial status is governed fully or partly by their own customs or traditions or by special laws or rules.69
ILO Convention No. 169 has been explained as containing a statement of coverage70 for indigenous and tribal people. It concentrates on securing indigenous peoples cultural integrity, the protection of their rights to their lands, territories and resources.71 ILO requires States to ensure the participation of indigenous people in decision-making and to recognize their rights to their own customs, institutions and legal regimes as well as to education, language and culture. Convention 169 stopped short of giving formal recognition to their right to self –determination.72
The lack of an international definition of ‘indigenous’ (though there are many national definitions), in addition to the vast differences between and within countries and regions in the situation involving indigenous peoples, makes it difficult to apply a one rule fits all approach concerning indigenous peoples. Within the context of countries that have ratified ILO Conventions Nos. 107 or 169, for example, the scope of applicability of these Conventions varies considerably. Whereas some indigenous or tribal peoples are defined by cultural characteristics such as language, etc., others are defined territorially, or by descent. The principle of self-identification also plays an important role in some states in deciding to whom relevant Conventions should apply.73
The two terms “indigenous peoples” and “tribal peoples” are separated in Convention 169 of 1989 because there are tribal people who are not “indigenous” in the literal sense in the
68 Articles 1(a) and (b) ILO Convention 169 of 1989 69 Ibid as in Article 1
70 ‘Department of Economic and Social Affairs, Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Affairs UN.Doc. PFII/2004/WS.1/14 Available < Www.Un.Org/Esa/Socdev/
Unpfii/Documents/Workshop_data_background.Doc 2-3’.
71 B. Tobin Indigenous Peoples, Customary Law and Human Rights; Why Living Law Matters (Routledge 2014) 34.
72 Ibid.
73 Ibid,. p.2-3
countries in which they live, but who nonetheless, live in a similar situation. An example would be the Afro-descended tribal peoples in Central America or the tribal peoples in Africa such as the San or Masaai who may have not lived in the region they inhabit longer than other population groups. Nevertheless, many of these peoples refer to themselves as
“indigenous” in order to fall under discussions taking place at the United Nations. Both Conventions Nos. 107 and 169 also stipulate that the scope of the measures to be taken to give effect to them should be determined in a flexible manner, having regard to the conditions characteristic of each country.74
By article 1(3) of Convention 169, the term “people” should not be construed as having any implications as regards the rights which may attach to the term under international law. Implying to some extent that people’s rights can be exercised including that of self –determination75 being freely exercisable by indigenous people as long as the territorial integrity of the state is respected and “uti posseditis juris” complied with.76 However, only 20 States are party to the only binding treaty on indigenous rights, that is ILO Convention No.16977 discussed above, and is thus a glaring reminder that numerous states remain intransigent to take on binding legal obligations that stipulate rights for indigenous peoples.78
Working Definition (Tentative) for indigenous peoples
Martinez Cobo under the auspices of the United Nations79 provides elaboration on how these various points might be understood and validated. Cobo frames understanding of indigenous peoples/their status as being interconnected with colonial domination. His description is:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.80
His view highlights inter-alia, that indigenousness is associated with “communities”,
“peoples” and “nations”. Apart from these, a number of other factors are regarded as relevant for comprehending indigenous peoples and identifying their historical continuity:
historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors:
(1) Occupation of ancestral lands, or at least of part of them;
(2) Common ancestry with the original occupants of these lands;
(3) Culture in general, or in specific manifestations,
74 Ibid., p.3.
75 See Article 3 and 4 of UNDRIP
76 The Cairo Declaration of 1964 of the Organization of African Unity. AHG Resolution 161, adopted by the First Ordinary Session of the Assembly of Heads of State and Governments held in Cairo, Egypt from 17- 21 July, 1964 available at <https://au.int/sites/.
77 It comes into force in Luxembourg the 23rd country in June 2019 see; ratification of ILO Con. 169 of 1989 <https://
www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312314>
78 F Viljoen (n 7), 229
79 Special Rapporteur, United Nations Sub Commission on the Prevention of Discrimination of Minorities.
80 ‘<https://Www.Iwgia.Org/En/News-Alerts/Archive/143-Uncategorised/340-a-Working-Definition-by-Jose- Martinez-Cobo>’.
(4) Language;
(5) Residence in certain parts of the country, or in certain regions of the world;
(6) Other relevant factors.81
Self-identification as indigenous is also regarded as a fundamental element in his working definition, as it is in the earlier definitions discussed under such documents as International Labour ( ILO) Conventions. On an individual basis, an indigenous person is one who belongs to these indigenous peoples through self-identification as indigenous (group consciousness) and is recognized and accepted by the group as one of its members (acceptance by the group). This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference.82 The purpose of the foregoing has been to highlight the variety and diversity of people that the concept of indigenousness can be rightly applied to.
In concluding this section, it is queried/asked: whom did the British and other European imperialists find when they stepped on the shores of Africa, Australia, New Zealand and or the Americas? In addition, how did they, charged with the sacred mission of establishing out posts of ‘civilization’ in distant lands, make sense of them?83 Based on the evidence, it is undoubted that they interacted with indigenous peoples.84 The preamble to the Report of the House Commons Select Committee on Aboriginal Tribes speaks of “native inhabitants” and “tribes” and the protection of the rights of the aboriginal inhabitants.85 As a consequence it can be put forward that the peoples inhabiting most of Africa and Nigeria for example at the time of British arrival were “aboriginal” “indigenous” inhabitants and
“natives” of that territory.
HISTORIC TREATIES, SOUTHERN NIGERIA AND BRITISH IMPERIALISM
This part of the narrative examines one of the types of treaties British colonialists made with indigenous Africans of Southern Nigeria. The colonizers in their process of acquiring and creating the colony and protectorate of Nigeria as part of the British Empire employed different methods and means of annexation. In some instances, Britain obtained land by means of military intervention.86 However, the most prominent way was through the entry into treaty relations between the British Crown and local inhabitants through their traditional rulers.87 However, it is a matter of disputation with respect to the nature and purport of these so called historic treaties. To understand what a treaty is, the Vienna Convention on the Law of Treaties88 defines a ‘treaty’ for the purpose of international law as:
‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two
81 Ibid.,
82 Ibid; Concept of Indigenousness at <www.un.org/esa/socdev/unpfii/documents/workshop_data_background.
doc> paragraph 2
83 ‘Bruce Buchan, “Subjecting the Natives: Aborigines, Property and Possession under Early Colonial Rule” in Social Analysis: The International Journal of Anthropology in (2001) Vol. 45, No. 2, Anthropology and Consultancy (November 2001)’. 143-162.
84 ‘The House of Commons Select Committee Report on Aboriginal Peoples (British Settlements) 1836-1837<https://
Archive.Org/Details/Reportparliamen00britgoog>’.
85 Ibid. “fellowmen” and “savages” were also paradoxically used in an attributive and secondary sense at 2-3 86 Elias, T.O. The British Commonwealth. The Development of Its Laws and Constitutions: Nigeria. ( Stevens, 1967).
87 8.Ibid
88 Article 2 (1) (a) Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969, United Nations, Treaty Series, vol. 1155, . 331 at: ‘Https://Treaties.Un.Org/Doc/Publication/UNTS/
Volume%201155/Volume-1155-I-18232-English.Pdf Link @ Http://Unimelb.Libguides.Com/Internationallaw/
Treaties’.
or more related instruments and whatever its particular designation. Treaties are commonly called ‘agreements’, ‘conventions’, `protocols’ or ‘covenants’ and less commonly `exchanges of letters’.89
For the purposes of this article/ discussion it is posited that it is unlikely that the treaties referred to in the Vienna Convention are applicable to the ones being discussed here.90 Although the Convention does not detract from the validity of the customary law governing treaties concluded before its entry into force,91 it is the way the Convention applies to the Modern States that is problematic for treaties made between Colonizing Powers with indigenous chiefdoms and kingdoms. States, as defined in law under the Montevideo Convention,92 does not include tribal, indigenous and native states and communities that subsisted in Southern Nigeria prior to its colonization. Nonetheless, the essence of the treaties under discussion were the agreements between what can broadly be described as ‘nations’ inasmuch as they had populations, territory and a form of political system of government and the British Crown through its agents or representatives.
In the constitution of the United Kingdom, the power of making treaties lies with the Crown as part of its prerogative powers.93 In pre-colonial nineteenth century West Africa, African chiefs and rulers in places like southern Nigeria entered into various treaties on behalf of their communities with agents acting on behalf of the British Crown or other European colonial powers.94 The treaties used in the nineteenth century were of three types:
1. Anti-Slave Trade treaties 2. Commercial Treaties and
3. Treaties of protection, subjugation and or cession.95
The treaty was usually the forerunner of English law in the territory that was to be annexed, if not in the so-called settler colonies.96 Of relevance to this narrative were the so called treaties of protection, subjugation and cessation of territories. As mentioned above the question of the legal status of such treaties of protection in international law has however been the subject of much contention97 prior to the passage of the United Nations Declaration on the Rights of Indigenous people. However, what is deduced from the jurisprudence is that these treaties between colonisers and tribal chiefs are not part of international law to be treated on the same basis as treaties between states. International law did not accord African states and communities that status in the era of the scramble and partition of the continent. Indeed, positivist international law of the nineteenth century saw the African communities as too primitive to understand the concept of sovereignty to cede it by treaty; As a consequence, any claims to sovereignty based on such treaties were
89 At http://unimelb.libguides.com/internationallaw/treaties
90 The type of treaties discussed here will be expanded upon in the course of this essay. Treaties can also include the creation of rights for individuals – see Public International Law: Treaties @ http://unimelb.libguides.com/
internationallaw/treaties cited above ; ‘E.W. Vierdag, “The Law Governing Treaty Relations Between Parties to the Vienna Convention on the Law of Treaties and States Not Party to the Convention”. The American Journal of International Law in (1982)Vol. 76 No.4 (Oct.,1982).’ 779-801 at 779.
91 Ibid 779.
92 165 LNTS 19. Concluded: 26 December 1933. In force: 26 December 1934.
93 ‘J. Burke, Jowitt’s Dictionary of English Law, 2nd Edition (London: Thomson Reuters, 2010).’
94 Elias, T.O. The British Commonwealth. The Development of Its Laws and Constitutions: Nigeria. ( Stevens, 1967) (n 86)., 8.
95 ‘A. O. Oyebode, “Treaties and the Colonial Enterprise: The Case of Nigeria” in (1990) Vol. 2, African Journal of International and Comparative Law 1990; 7-36 at 18’.
96 ibid,
97 ‘A. O. Oyebode, “Treaties and the Colonial Enterprise: The Case of Nigeria” in (1990) Vol. 2, African Journal of International and Comparative Law 1990; 7-36 at 18’ (n 95)., 18
seen as invalid; cessions of territory by native tribes to European powers fell outside the law of Nations according to this school of thought.98
Taking cognisance of these observations and limitations, the historic treaties needs further elaboration. In general the form of the treaties employed by agents of the British Crown (usually English Charter Companies) operating in Africa in relationship to African rulers.
Concerning such treaties, they were made in form of agreements with African chiefs who were holders of sovereign titles to territory, and that these chiefs were capable of giving valid transfers of territory was not in any doubt.99 As the treaties transferred certain rights from the African to a European entity, whether territorial or other rights, it was important to ascertain that the African transferor was the holder of such rights and capable of transferring a valid title to the transferee. Rights transferred in this way could be public or private rights but it was indispensable that the traditional pre-colonial African kings and rulers had sovereign powers to transfer to the European Power.100 In reality this implied from the European as well as the African point of view, all round independence, internal and external.101 Both the European imperialist and African rulers were in approximate agreement as to their capacity of transferring and receiving sovereign rights and as to the nature of the transaction that conveyed a title according to the customary international law of that era.102
Nwabueze, for his part has contended that it was ‘quite competent, for the British Courts to construe a [pre-colonial] treaty with a view to determining its meaning.103 Hence, the Treaty of Lagos that ceded the territory to the British Crown [in circa 1861] has come up for construction in several cases before the Nigerian courts and the Privy Council.104 Yet despite this position, it is generally accepted that as the authority to make treaties derives from the Crown by virtue of its prerogative powers, these Acts of State are not justiciable in the municipal courts of England/UK.105 Therefore, in the British context the lack of municipal jurisdiction provided the means to legitimate territorial acquisition, which could not have been justified according to the principles that informed customary international law.106 It is submitted that the treaties concluded with African entities were primarily political – providing evidence of territorial claims against other European power and thereby allowing the partition of the continent including Nigeria which accrued to the UK, to take place.107
In the course of this discussion, decisions of the Judicial Committee of the Privy Council attest the legal character of the transfer of sovereignty by treaties concluded with African chiefs.108 In Re: Southern Rhodesia109 counsel for the natives argued that whatever the transfer of title in public or private law, the European transferee must hold certain
98 ‘A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004) 90- 97 , 91’.
99 C . H. Alexandrowciz, The European African Confrontation: A Study in Treaty Making (Leiden: A. W. Sitjhoff, 1973), 31; Leah Trueblood, ‘Are Referendums Directly Democratic?’ (2020) 40 Oxford Journal of Legal Studies.
100 Ibid30.
101 Ibid 31.
102 Ibid 32.
103 ‘B Nwabueze,’ A Constitutional History of Nigeria’. ( C. Hurst, 1978) at 16, 25 (n 33) Therein; Walker v. Baird [1892] A.C. 491 at 497’.
104 Oduntan Onisiwo v. Attorney General of Southern Nigeria (1912 2NLR 79; Attorney General of Southern Nigeria v. John Holt [1915] AC 599; Ahmodu Tijani v. Secretary of Southern Nigeria [1921] AC 399.
105 R v Earl of Crewe, ex parte Sekgome (CA) [1910] 2KB 576.
106 ‘J. Castellino and S. Allen, Title to Territory in International Law; A Temporal Analysis ( Dartmouth Publishing, 2003), 110’.
107 Ibid.
108 Ibid 5, 126.
109 [1919] A.C. 211.
acquired rights as trustees for the community which retains the beneficial interest and the capacity of reversion to the enjoyment of these rights whenever European rule will come to an end.110
During the scramble for territories in Africa in the nineteenth century, treaties of cession by the African authorities were recognized among the colonizing powers as conferring a valid title even without effective occupation and for this reason the interested colonizing powers all sought to base their titles on treaties.111
There was diplomatic contact between some kingdoms and the Republics inter se in Southern Nigeriaand the United Kingdom and some other European powers externally:112
The towns of Calabar, 113 are in fact, a number of republics, each with its own Chief and Council united by the Ekpo Fraternity…the British Foreign Office recorded that Henshaw Town and Duke Town “lived separately, each under its own laws and government.114
Based on these treaties, with respect to the rights of the indigenous peoples / tribes, the right of protest against aspects of the British colonial administration of Nigeria was manifested as far back as 1913 when it was reported as follows that:
A delegation of 40 Native rulers from Southern Nigeria is on its way to London to protest against the alleged infringements of ancient native rights. The advance party, including Prince Bassey Duke, the son of the last crowned native King of Calabar, Prince James Eyo Ita, Chief Richard Koko and Chief Inko Goodhead (all from indigenous minority tribes in southern Nigeria). Landed at Plymouth….Prince Bassey Duke declined to make any statement until the delegation appeared before the colonial secretary.115
In response to the meeting of this delegation with the colonial secretary, Lord Lugard, Nigeria’s first imperial Governor General was aware of it. He however, interpreted the mission of the native chiefs that set sail on May 12, 1913 as being one to give evidence before a committee set up by the colonial secretary to inquire into the question of Native Land Tenure and not as a protest against the colonial administration in Nigeria.116
Many of these treaties of protection, subjugation and cession have been criticized as questionable. Akinjide for example states that:
[T]he chiefs who signed treaties with… the British Consul…often did not understand that they were effectively surrendering their sovereignty to the British Crown.
Sometimes their signatures or marks were forged or obtained under duress. Other times, the British simply lied to them117
110 Ibid 215 -216. See further, United Kingdom; The Common Law Principle: Recognition of Pre-existing Rights and Customs United Kingdom, Basic Laws (hrcr.org) @www.hrcr.org/safrica/cultural_religious/uk_rights.html.
111 ‘J. Castellino and S. Allen, Title to Territory in International Law; A Temporal Analysis ( Dartmouth Publishing, 2003), 110’ (n 106), at 5.
112 R. Akinjide, The Sokoto Caliphate in the Transformations of the Niger Delta, The Oyo Empire and Nigeria (Akinjide
& Co Barristers, Solicitors & Arbitrators 2001).
113 In the Niger Delta Region 114 Ibid., 1. (F O 84/1527)
115 R. Akinjide, Are African Leaders Caught in a Dilemma of Contradiction of Both Cultural and Western Expectations of Leadership (Akinjide & Co, Barristers, Solicitors Arbitrators etc; Lagos Nigeria 2009).
116 The Times of 29th May, 1913 page 7 column C.
117 R. Akinjide (n 112); Karl Maier, This House Has Fallen: Nigeria in Crisis 2000 (Public Affairs & Allen Lane and Penguin 2002 2000); Benjamin Nwabueze, A Constitutional History of Nigeria (C Hurst and Company 1982), 9.
(Both of which would void a treaty under the Vienna Convention on the Law of Treaties).
Despite the controversy, the International Court of Justice in the Western Sahara Case118 was of the view that:
Whatever difference as of opinion there have been among jurists, the State practice of the relevant period [1884] indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through “occupation” of terra nullius by original title but through agreements concluded with local rulers…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....119
Abraham, without expanding further on the proposition of the consequence of refusing legal recognition to treaties negotiated between European Powers and the people of Africa, urges that pragmatism prevailed. By the time Africa was partitioned, international law had no choice but to give some measure of legal personality to the indigenous peoples.120 According to Allen and Castellino:
that the imperial powers agreed that treaties of cession had to be signed to legitimate transfer of territory in Africa suggests a greater respect for the existence of a people than was granted to Latin American indigenous peoples, even though in both cases the imperial powers ultimately achieved their end result- the acquisition of territory.121
From the Berlin Act (1884-1885)122 certain notable facts are observable. It formed the legal mechanism of bringing the continent of Africa, including the peoples and territories of Nigeria, into the family of nations.123 The principles of international law then prevailing were interpreted to favour European economic and political interests.124 The African communities whose territories were being partitioned were not represented at the Berlin Conference. On the contrary and subsequently, the Western Powers, the main conference participants assumed the role of “Official Guardian” of the African communities and in the process introduced the new legal principle: that of the sacred trust of civilization.125 On the scramble for and the partition of Africa, Alexandrowicz, further contends that this process ‘was in the first instance not a race for occupation of land by original title, but a race for obtaining derivative title deeds which the European Powers had to acquire according to the rule of international law relating to negotiation of treaties’.126
118 ‘(1975) ICJ Reports (1975), 59 ILR 30; Western Sahara, Advisory Opinion, 1.C.J. Reports 1975, 12. < Https://
Www.Icj-Cij.Org/Files/Case-Related/61/061-19751016-ADV-01-00-EN.Pdf> Accessed on 09/12/18’.
119 The Western Sahara Case as above para 80
120 ‘G. Abraham, “ Lines upon Maps” : Africa and the Sanctity of African Boundaries’ in(2007) Vol. 15, African Journal of International and Comparative Law 2007’, 61-84.
121 ‘J. Castellino and S. Allen, Title to Territory in International Law; A Temporal Analysis ( Dartmouth Publishing, 2003), 110’ (n 106). 25
122 The General Act of the Berlin Conference , 26 February 1885, C 4361 1885 (General Act ) in E Hertslet, The Map of Africa in Treaty, vol.2 3rd edition (HMSO,1909) 128,468.
123 C . H. Alexandrowciz, The European African Confrontation: A Study in Treaty Making (Leiden: A. W. Sitjhoff, 1973), 31 (n 99). 5-6.
124 R. Akinjide (n 112), 9, and Matthew Craven, ‘Between Law and History: The Berlin Conference of 1884-1885 and the Logic of Free Trade’ (2015) 3 London Review of International Law, 32.
125 C . H. Alexandrowciz, The European African Confrontation: A Study in Treaty Making (Leiden: A. W. Sitjhoff, 1973), 31 (n 99).
126 ibid.
