University of Czestochowa, Poland African Boundaries and Human Rights

• Author: Tomasz Srogosz
• Pages: 697-715

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.