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Treaties or scraps of paper? A second look at the legal character of the nineteenth century British/African colonial agreements

Mugambwa, J.T. (1987) Treaties or scraps of paper? A second look at the legal character of the nineteenth century British/African colonial agreements. The Comparative and International Law Journal of Southern Africa, 20 (1). pp. 79-93.

Abstract

Referring to the agreements which agents of European states made with African chiefs in the late nineteenth century, Frederick Lugard, said that they were "produced in cartloads." This is probably an accurate description especially as it came straight from the horse's mouth - Lugard being one of the agents involved in their collection. Several writers have expressed the opinion that, from an international law point of view, these cartloads of "treaties" were just scraps of paper which neither imposed legal obligations nor conferred any rights. It is said that at best they were moral rights and duties which could be ignored at the whim of the European states. In this paper I examine some of these arguments in relation to the agreements which the British made with African chiefs in the late nineteenth century and endeavour to establish the legal significance of these agreements in international law and in British municipal law. As Judge Huber said in the Islands of Palmas Arbitratioll case, a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled. Likewise the legal character of these agreements has to be determined in accordance with the law as interpreted during the period when they were made. Emphasis will be on the international law as interpreted by the British government.

Publication Type: Journal Article
Publisher: The Institute of Foreign and Comparative Law University of South Africa
Copyright: The Institute of Foreign and Comparative Law University of South Africa
Publishers Website: http://www.unisa.ac.za/default.asp?Cmd=ViewContent...
URI: http://researchrepository.murdoch.edu.au/id/eprint/15696
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