University of Czestochowa, Poland African Boundaries and Human Rights

Autore:Tomasz Srogosz
Pagine:697-715
 
ESTRATTO GRATUITO
697
TOMASZ SROGOSZ*
AFRICAN BOUNDARIES AND HUMAN RIGHTS
A state boundary is defined as a plane perpendicular to the Earth’s
surface which separates a state from another state or the high sea. From
the legal point of view boundaries constitute a limit of domestic
jurisdictions. It is difficult to imagine international law without state
boundaries due to the fact that, by determining the shape of the state
territory, they delimit one of the elements which constitute the subject of
international law, namely – the state.
The functions of borders have always constituted an important area
of studies within political science and international law. The following
paper also covers the issue in question, yet it analyses it from the perspective
of a specific region –Africa – and it focuses on the exercise of human rights.
Is the relationship between the shape of African borders and the human
rights direct or indirect? The paper does not concern itself with the simplest
relationship existing between the regime of borders and the right to
movement. It does not concern itself with the jurisdiction of states over the
protection of human rights. It does not concern itself merely with the national
minorities created by the course of borders. The correlation between the
shape of African borders and human rights has a profound and multifaceted
charac ter. Co nsiderations on the abov ementioned issue lead to a surprising
question - is there a need for changing African boundaries? This dilemma does
not appear in the discussion on the human rights in Europe, America and Asia, in
which case we usually discuss the improvement of standards of human rights
and their international protection in a framework of precisely shaped borders. In
this case scholars do not have confidence to question the principle of inviolability
of boundaries, whereas, in the resources concerning the situation in Africa there
appear opinions (like the one of Makau wa Mutua, for example) according to
which there exists a necessity of reestablishing African boundaries. The
humanitarian arguments are also visible in the background of such opinions.
1. “Scramble for Africa”
Political maps were not known in the pre-colonial Africa. The tribes
who inhabited the continent in question were unfamiliar with the idea of
* University of CzCstochowa, Poland.
698
European linear boundaries1. Such a situation probably resulted from an
excess of territory in comparison with the population. The territorial
sovereignty took shape of circles and the further away from the seat of
the ruler, the more diminished his power was to disappear completely at
the edge of his territory. There could be found territories not subjected to
any authority. The lack of borders resulted also from the migratory nature
of the population2.
The African boundaries are a product of the European colonial
states, which, while assuming their civilizing mission, implemented on
the African continent the “European” international law, which was based
on the national state with its precise boundaries established on the
grounds of territorial sovereignty.
The future of Africa and its population laid entirely in the hands of
the so-called civilized countries. The African political entities, regarded
as backward, were excluded from the debate about the future of the
continent. Such an approach had its foundation in the anthropological,
philological, economic and legal sciences. Positivism divided the world
into the civilized and uncivilized areas and it established a relationship of
subordination between them. The civilized world indicated to the African
peoples the way of their development within the framework of the so-
called civilizing mission. The abovementioned attitude resulted in the fact
that a significant number of territories in Africa were regarded as terra
nullius3. It was not until the year 1975 that the International Court of
Justice departed from such reasoning. In the Western Sahara case it
emphasized that the lands situated in the Western Sahara did not
constitute no-one’s land in the times of colonization4.
The European states, basing themselves on the positivistic concept of
international law, divided Africa into “spheres of influence”, thus
creating in the second half of the XIX century the first political map in
the history of the continent. The shape of the said spheres resulted from
the economic expansion, which aimed at raw materials and cheap labor
force (slaves). The factors which determined the shape of African borders
were different than those which shaped European boundaries. In Europe
the boundaries were established as a result of the rivalry between the
1 I. BROWNLIE, African Boundaries: A Legal and Diplomatic Encyclopedia, California
1979, p. 8.
2 J. HERBST, States and Power in Africa. Comparative Lessons in Authority and
Control, Princeton-New Jersey 2000, p. 38-45.
3 A. ANGHIE, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth
Century International Law, Harvard International Law Journal, 1999, vol. 40, p. 35, 58,
77-78.
4 Western Sahara Advisory Opinion, ICJ Reports, 1975, p. 31.

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