The following article was published in the January 2026 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 80th anniversary of the UN Charter.
Colonisation, Africa, and the United Nations Charter in the Westphalia Order of International Law
Chief Charles A. Taku
Chairman, Committee on Reparations, African Bar Association (AfBA)
Former President, International Criminal Court Bar Association (ICCBA)
Counsel before International Courts and Tribunals, The Hague
Abstract
The United Nations Charter (UN) pledged in its preamble to save succeeding generations from the scourge of war which twice in the lifetime of its members, brought untold sorrow to mankind. The UN Charter reaffirmed faith in fundamental human rights, in the dignity and worth of the human person, in equal rights of men and women and nations large and small. It pledged to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law would be realized for the promotion of social progress and better standards of life in larger freedom. These principles, which found their way into the UN Charter, were adopted at the Peace of Westphalia, which brought an end to the 30-year war in Europe on October 23, 1648. Europe applied the principles capriciously because they laid the foundations of international law and peace in Europe but enabled the partition and colonization of Africa among European countries at the Berlin Conference in1884.
This paper establishes that the post-Second World War (WWII) order which was firmly established in the UN Charter, legitimized colonialism, racism and historical wrongs against Africa but also laid the foundation for self-determination, independence and the quest for freedom. The paper critically analyzes UN Charter pledges and obligations towards the liberation struggles of colonized and non-governing peoples worldwide, particularly African countries, for independence and the legacy of colonialism which the UN inherited and legitimized. The paper will further demonstrate that the UN Charter is a capricious construct which normalized and legitimized the colonial status of European African colonies while providing the mechanisms and enabling legal frameworks for decolonization without reparations.
Keywords: Africa, Charter, Colonialism, Constitutions, Humanity, Impunity, International, Justice, Preamble, self-determination, Treaty, War
Introduction
The United Nations was founded in 1945 in San Francisco in the United States of America (USA) at the end of the Second World War. At the founding of the United Nations, Africa, South East Asia, the Caribbean, Pacific and indigenous peoples in many parts of the world, were not considered as subjects of international law and therefore, were not contemplated when the universal pledge on peace, security, justice, economic and human rights were adopted and made salvific tenets of international justice; a new world order and civilization. Their colonial status under the Westphalian order was maintained, legitimized and exploited under the world order which was established in the UN Charter and international law.
On attaining independence by the 1960s, more than half a century after the founding of the UN in 1945, membership in the UN by African states — erstwhile European colonial possessions — did not insulate them from for being subjected to violations of the UN Charter’s fundamental rights and obligations. Centuries-old colonial exploitation, domination, racism, imposed value systems, belligerent aggression through colonial treaties by erstwhile colonial masters, have continued with unrestrained ferocious intensity and impunity. Acquired colonial interests were deemed legitimate under the UN Charter and international law treaties. For the UN Charter to fulfil its universal ambitions, the decolonization of the UN Charter and international law is a necessary endeavor to undertake for the total independence of Africa to occur under universal principles of sovereign equality, humanity, freedom, self-determination, justice, prosperity, peace and security.
Westphalian Colonialism
On October 24, 1648, the peace of Westphalia, which redefined international relations among European countries, established the modern state system which recognized the sovereign equality of states after the 30 years’ war concluded.[1] The Peace of Westphalia established a state-centric order with limited recognition of individuals as having rights separate and independent from their states.
The core principles of the peace of Westphalia informed the preservation of the balance of power and the observation and preservation of the Westphalia system in the UN Charter. These principles were intended to serve the peace, security and justice needs of Europe but were not applicable to Africa when the UN was created and remained so, until the independence of African states beginning with Ghana in 1957. The Westphalian system framework in the Charter of the UN encompasses:
- State sovereignty, independence and equality of states to each other.
- Prohibition from interfering in the internal affairs of other sovereign states.
- Right of self-preservation/self-defence.
- Right to remain neutral in a conflict between other states.
- Right to diplomatic privileges and immunities, including officials of the state and their organs.
- Peoples’ right to self-determination.
- States’ obligation to protect the rights of minority religions within their territories.
- States’ right to trade freely with each other.
- All states have the right to navigate the ocean freely, whether or not a state was a coastal or land-locked country.
- Right to develop International Law which was to be secular.
- States had an obligation to settle their disputes peacefully;[2]
Under the Westphalian system, how states treated their nationals was an internal affair. Westphalia recognized limited human rights for individuals, the right of self-determination, protection of minority religions and diplomatic immunities for organs and personnel of the state.
Given the origin of the Westphalian order, which came at the end of a long war, it would be hard to have a lasting peace without the recognition and protection of the rights of the individual. The Westphalia system did not extend similar rights and protections beyond Europe and did not recognize non-Europeans who made up a majority of the world. Outside Europe, territories and peoples had no rights and were not granted protections under international law. They were considered uncivilized and their land was characterized as terra nullius. This allowed European states to expand and conquer territories in Africa, Asia and the Americas with impunity. Westphalia international law gave European states unchecked impunity to colonize, enslave, and kill the native population of these territories. [3] The partition of Africa (1884-1885) and the criminal use of international law to justify the commission of genocide, crimes against humanity, looting, theft and plunder for African cultural heritage objects; desecration of spiritual ethos and the destruction of the creative ingenuity and the civilization of Africans were sanctioned, enabled and legitimized by the Westphalian order.
The General Act of the Berlin Conference, which was signed on 26 February 1885 by nineteen European powers in Berlin, Germany, gave them sovereignty over African resources, cultural heritage, treasures and enslaved forced African labor. Article VI of the said General Act, which was titled “Provisions relative to protection of the natives, of missionaries and travelers, as well as relative to religious liberty”, extended the right to loot African resources, cultural heritage and treasures to European missionaries and defined the colonial agenda as a mission of civilization over Africans. It invoked the name of God to bless the colonial enterprise conferring:
All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization.[4]
This legal framework legitimized the ruthless enforcement of colonialism through the impunity of atrocity crimes against humanity and genocide of an unimaginable scale; and with enduring intergenerational effects searing into the fabric and soul of the UN Charter and the capricious elasticity of colonial international law.
Objectives of the UN Charter.
The UN Charter pledged in Article 1 (1); To maintain international peace and security, and to that end; to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
Article 1(2), To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
Article 1(3), To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.[5]
The Charter conferred the power to maintain international peace and security on the UN Security Council in Articles 2(4) and 39 and conferred on the General Assembly through the United for Peace Resolution (1950) the authority to exercise the peace and security mandate in the case of a deadlock of the UN Security Council.[6]
The UN Charter in Article 13 confers on the General Assembly the right to initiate studies and make recommendations for the purpose of:
- promoting international co-operation in the political field and encouraging the progressive development of international law and its codification.
- promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
The UN General Assembly represents the collective will of the entire international community, hence its resolutions receive overwhelming support. It can inform the development of international law or delegitimise an existing customary international law (see ICJ Advisory Opinions in the Namibia and Western Sahara Cases).[7]
The United for Peace Resolution (1950) expanded the power of the General Assembly. The resolution granted the GA the power to debate any issue about a threat or breach of international peace and security if the Security Council is deadlocked to make recommendations. The resolution came in the wake of the stalemate during the Korean war when the USSR vetoed the extension of the US-led force in Korea. Except in a few cases, the GA has rarely invoked this new power granted to it. The GA has on occasions authorized peace-keeping missions or other missions, such as the International Civilian Mission in Haiti established under GA Res. 47/28B(April 20, 1993)[8].
The UN has dual mandates, to achieve international cooperation to maintain international peace and security and to promote and protect human rights and fundamental freedoms for all without discrimination as to race, religion, sex, language and religion, which is one of the objectives of the UN enshrined in the UN Charter. Articles 1(3), 13(b), 55(c ) and 62 (2).
The UN Charter Legitimized Colonialism
A critical examination of significant developments which occurred during the Post World War II world order under the UN Charter establishes that some UN Charter pledges have faltered or failed to fulfil the promises of hope which they elicited in the aftermath of the Second World War. For example, the “Never Again” pledge which was intended to rid the world of the scourge of war and enthrone a collective culture of peace and justice has failed a critical test of reliability. The State of Israel for example, was established in 1948[9]. The United Nations Mandated Administering Authority over Palestine, Great Britain, and/or the UN did not take realistic enforceable guarantees and measures to safeguard peace and security for both Israel and Palestine by establishing an inviolable homeland for an independent state of Palestine and for Israel within a two-state solution. The international protections under the UN Charter and international law for the state of Palestine were ruthlessly and recklessly ignored thereby laying the basis for conflict and genocide of Palestinians despite the Convention on the Prevention and Punishment of the Crime of Genocide (1948) [10] which was adopted the same year the State of Israel was founded. The objective was to lay an durable foundation of peace and security in the region. It was a missed opportunity to ensure make the “Never Again” pledge a living binding obligation for humanity.
Great Britain and the UN exhibited a similar capricious conscious misjudgment over the UN Trust Territory of the Cameroons under British Administration by failing to fulfill the operative implementation of UN General Assembly Resolution (UNGA) 1608 XV(5).[11] Paragraph 5 of the UNGA Res.1608 invited the UN Trusteeship Administering Authority Great Britain, the Government of the Southern Cameroons and the Republic of Cameroun to initiate urgent discussions with a view to finalizing before October 1, the arrangements by which the agreed and declared policies of the parties concerned will be implemented prior to the termination of the UN trusteeship over the territory. This condition precedent was not fulfilled. Great Britain simply abandoned the Trust Territory, allowing the Republic of Cameroon to annexation the territory. This laid the foundation for the ongoing armed conflict which has claimed thousands of lives and a genocide which is occurring on the watch of the UN and the international community.
Another example is the no war, no peace situation in the Korean Peninsula. War broke out in the Korean Peninsula in 1950. [12] Allies in the Second World War turned their weapons towards each other and embarked on a dangerous arms race during an ideologically inspired cold war between the West led by the US and the East led by the Soviet Union. The concomitant impact of the cold war and the Westphalian order with its racist ideological colonial entrapment, further legitimized colonialism and the brutal suppression of nationalist aspirations for independence in Africa and Southeast Africa. With France, which was humiliated after World War II, leading the way. Belgium, Spain and Portugal waged genocidal wars against persons in their “colonial possessions” whose crimes were that they asserted the rights of their people to self-determination, independence and the fundamental freedoms contained in the UN Charter and the Universal Declaration of Human Rights (1948). The enduring devastating effects of liberation wars in the continent of Africa are still being felt by millions.
Right to Self-Determination
International law recognises that people have the right of self-determination as an erga omnes obligation under customary international law and by Articles 1 (2) and 27 of the UN Charter.
The UN Charter in Chapters XI and XII establishes the rights of colonial and non-self-governing peoples to the right of self-determination in the colonial context. Self-determination has a longer political history than a legal norm.[13]
Both the International Covenant on Human Rights (1966) in its Article 1 and the International Covenant on Economic, Social and Cultural Rights recognise the right to self-determination. The UN Charter elevated international human rights to the same level as state sovereignty. This is a remarkable achievement. Anne Bayefsky, explains that UN Charter Chapters XI,XII afforded special status of colonies and other self-governing territories to states in embryo, a status which initially was based on the development of the right of self-determination of peoples focused on issues of decolonisation, pursuant to Chapters XI and XII of the UN Charter dealing with non-self-governing territories.[14] It is only in the context of decolonisation that self-determination has been applied as a legal basis for achieving independence and has been recognized as such by the International Court of Justice (ICJ). [15]
Some states felt that it would be difficult to enforce the rights under these arrangements which they construed as being at variance with their customs, traditions and religions considering them as a continuation of Western imperialism. However, in the Universal Declaration of Human Rights (UDHRS) these rights are aspirational in nature and in this regard, the UN fulfilled its mandate by establishing human rights conventions and human rights as aspirational and others with enforceable mandates, forming the corpus of international human rights law; many which have attained the status of international customary law, and are thus enforceable as such.
Sweeney argues that while all the rights proclaimed in the UDHR and International Covenants are protected and internationally recognized human rights, some rights are fundamental and intrinsic to human dignity, and a consistent pattern of violations of such rights as a state policy, may be deemed “gross,” ipso facto. He cites as examples: systematic harassment, invasions of privacy of the home, arbitrary arrest and detention ( even if not prolonged), denial of freedom to leave a country when a country of haven is available, denial of right to return to one’s own country, mass uprooting of a country’s population, denial of freedom of conscience and religion, denial of personality before the law, denial of basic privacy such as the right to marry and raise a family, invidious racial or religious discrimination. A state party to the Covenant on Civil and Political Rights is responsible even for single, isolated violations of one of these rights, and a state is liable under customary law for a consistent pattern of violations of any such rights as state policy.[16]
Colonialism as a Crime Against Humanity
The United Nations General Assembly and international human rights treaties contain a body of international human rights laws and Resolutions which affirm the criminal nature of colonialism, colonial crimes and egregious violations. The prevailing situation of international law prescribes reparations, restitution and repatriation as remedies for harm suffered from colonialism. These resolutions do not have an enforceable effect and have largely been ignored, therefore, a robust United Nations Security Council Resolution may be required to make them enforceable.
Some of the UN resolutions which affirm the criminal nature of colonialism and recommend reparations and forms of remedies for the harms caused include the following:
On 18 December 1973, the United Nations General Assembly passed Resolution 3187 for the return of cultural objects to ‘countries which are victims of expropriation.[17]
A Sub-Commission of the United Nations Human Rights Council (Human Rights Advisory Committee) passed resolution 2002/5 of 12 August 2002 on violations of human rights which arose during the period of slavery, colonialism, and wars of conquest.[18]
The United Nations General Assembly, at its 44th plenary meetings, adopted a resolution on the return or restitution of cultural heritage to countries of origin.[19]
The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005, attached to the UNGA Resolution 60/147 of 16 December 2005, provides a framework of guidance to seek remedy for reparations which specifically addresses access to justice (Article 12), Statute of limitations (Article 6) Restitution (Article 19), Satisfaction (Article 22).[20]
The Basic Principles and Guidelines in its preamble referenced applicable international human rights law and international humanitarian law regime in the following provisions:
Article 6 states that where so provided for in applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law.
Article 7. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive.
Article 12. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms modalities and proceedings conducted in accordance with domestic law. Obligations arising under international law to secure access to justice and fair and impartial proceedings shall be reflected in domestic law.[21]
The Permanent Court of International Justice, which was established by the League of Nations, decided in the Chorzow Factory Case that ‘it is a principle of international law that the breach of an engagement involves an obligation to make reparations in an adequate form.’[22]
Pursuant to these international instruments, Germany has established the Framework Principles for dealing with collections from colonial contexts. The Framework dated 13 March 2019 pledged,
To create conditions for the return of human remains and of cultural objects from colonial contexts which were appropriated in a way which is no longer legally and/or ethically justifiable […] with the requisite urgency and sensitivity. Through the violent appropriation of cultural objects in the wake of European colonialism, many societies were robbed of cultural objects which are crucial in defining their history and their cultural identity. Cultural objects embody connections which are of fundamental importance for the cultural identity.[23]
European colonial states have not made a similar pledge of restitution despite the slow but steady post-Second World War international legal order which declared colonisation a crime against humanity with a right of restitution and reparations for colonial crimes and violations.
Need for International Legal Frameworks for Reparations
The UN Charter, regional treaty regimes and international legal frameworks do not have enforceable mandates for reparations and restitution. Individual and collective efforts by affected communities are stymied by institutional and diplomatic structures of governance in erstwhile colonial states and neocolonial states in Africa which are not sufficiently motivated to defend reparation requests from affected communities and victims of the intergenerational harms caused by colonialism.
Discriminatory international response to requests for restitution and reparations caught the attention of the African Bar Association and elicited a strong response from Chief MKO Abiola during the biennial conference of the African Bar Association, which took place in Abuja, Nigeria, from 18–22 March 1991. Chief MKO Abiola (24 August 1937 – 7 July 1998) delivered a keynote address in which he launched the campaign for restitution and reparations for stolen African cultural heritage. The venerated Nigerian businessman and politician forcefully presented Africa’s case for the restitution of Africa’s looted artefacts and the payment of reparations. In his speech titled ‘Social Justice and the New World Order’, Chief Abiola forcefully submitted that,
The Iraqis committed terrible crimes against the Kuwaiti people during six months of brutal occupation. Tell us a single thing that Iraq did to Kuwait which the colonial masters did not do to us for six centuries and still continue to do? […] If Iraq was punished for not returning stolen treasures from Kuwait, we too deserve an immediate return of our plundered treasures now on display in the magnificent museums of Europe and America.[24]
Chief Abiola’s address was made shortly after the First Iraq War (16 January 1991 – 28 February 1991). Decrying the discriminatory unbalanced scales of justice by the West Chief Abiola submitted further,
If we accept – and men and women of good will must – that Iraq should be punished and made to pay reparations for plundering Kuwait for six months, how can it be honestly said that Africa should not be compensated after being plundered for six centuries? If we cannot express concretely this expanded idea of equality before the law of individuals as well as of states, nations, and continents, I regret to say it, but it must be said, that the law is an ass.
Kindly tell what Iraq did to Kuwait which the United Kingdom, France, Spain, Portugal, Germany, Belgium, Italy, and Holland did not do to Nigeria, Ghana, Zimbabwe, Namibia, Angola, and every other African country except Liberia, which was used as a dumping ground for free slaves from the US? The Iraqis committed terrible crimes against the Kuwait people during six months of brutal occupation. Tell us a single thing that Iraq did to Kuwait that our colonial masters did not do to us for six centuries and continue to do. Palaces were destroyed and looted in Kuwait. So were they in Benin, Sokoto, Ndebeleland, Timbuktu, Agadez and thousands of other African cities.
Justice and conscience demands that just as America and their allies were fighting to rebuild the palaces and cities of Kuwait, we, too, demand that our cities and palaces be rebuilt. If Iraq were punished further for not returning treasures it stole from Kuwait, we, too, deserve an immediate return of our own plundered treasures now on display in the magnificent museums of Europe and America.
Of far greater importance is the plunder of human treasuries, the millions of young men and women in the full bloom of youth, plucked like fresh fruits from the soil of our motherland. We, as a people and a continent, have a right to be compensated for the far greater crimes of slavery, colonialism and neo-colonialism which lasted for centuries and cost hundreds of millions of lives. Many of the problems afflicting Africa today are products of damage done by slavery and colonialism. Without reparations these problems cannot be solved. In view of the excruciating debt burden imposed on the continent, time has come for us to seek for the economic kingdom since political kingdom advocated by Kwame Nkrumah had been attained.[25]
On 23 September 2021, it was reported that the United States was repatriating 17,000 Iraqi artifacts, which were stolen and taken to the United States during the war from 2001–2003.[26] African cultural heritage artefacts have not been repatriated and reparations for colonial crimes have not been paid. The unbalanced scales of justice have tilted against Africa and black people by historical crimes and violations.
African Charter on Human and Peoples’ Rights
Writing about the African Charter on Human and Peoples’ Rights (21 October 1986), Anne Bayefsky stated that the idea of a treaty on human rights conventions and commissions dates to 1961 and lists the following major conceptual innovations in the field of human rights.
‘For the first time an international treaty undertakes to ensure to people not only the right to self-determination, but as well the rights of existence, equality, development, peace, security and general satisfactory environment.
Secondly the ACHPR provides several fundamental duties of individuals towards his family and society, the state, other legally recognised communities and the international community.
One of the duties is to preserve and strengthen positive cultural values in relation with other values of society.
The emphasis on the protection of morals and traditional values recognised by the community and on family as the basic unit and basis of society underlines the specific community oriented approach that distinguishes the African Charter from other international human rights instruments’.[27]
The underlying ideological perspective of human and peoples’ rights are captured in the preamble of the Charter as follows;
The African States, members of the Organization of African Unity, parties to the present convention entitled “African Charter on Human and Peoples’ Rights”,
Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of a “preliminary draft on an African Charter on Human and Peoples’ Rights providing inter alia for the establishment of bodies to promote and protect human and peoples’ rights”:
Considering the Charter of the Organization of African Unity, which stipulates that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”:
Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal
Declaration of Human Rights:
Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights:
Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings which justifies their national and international protection and on the other hand that the reality and respect of people’s rights should necessarily guarantee human rights;
Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone.
Convinced that it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.
Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex. language, religion or political opinions;
Reaffirming their adherence to the principles of human and peoples’ rights and freedoms contained in the declarations, conventions and other instrument adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations;
Firmly convinced of their duty to promote and protect human and people’ rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa;[28]
Have agreed as follows:
Part I: Rights and Duties.
Article 1 The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.
Article 4. Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Article 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Article 23 All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States.
Ongoing Neo-Colonial Aggression
Despite the prohibition of foreign military bases in Africa in the African Charter on Human and Peoples. Rights (October 211986), Adekeye writes that the European Union (EU), encouraged by France seeking a means to justify its own continued military presence, has evinced a willingness to find ways of being militarily involved in Africa. He laments that “through conquest, Africa became a patchwork of territories …under the sovereignty of one or another European power.” He recalls the painful memory of three months of negotiations which altered the fate of Africa with the painful reality that there was not a single African representative on the ‘horseshoe negotiating table during which both the French and the Italians in their more strategic moments saw an expansion of Europe southwests across the Mediterranean”. [29]
Recalling the tortuous path to self-determination during the post-World War II world order which is marked by two parallel trends of profound importance: The movement for decolonisation of Europe’s empires, all of which had become unsustainable for a continent which had but all been destroyed, and the triumph of American power and the rise of the Soviet Union to superpower status which gave a boost to nationalist movements, in theoretical support of self-determination of people as articulated in the charter of the United Nations, which it was hoped in 1945 would be more effective than the ill-fated League of Nations had been between the two world wars.[30]
The neocolonial deathtrap through which independent but not free Africa neo-colonies were tethered to the sovereign enslavement of former colonial powers took place in Yaoundé, Cameroon. The so-called Yaoundé Conventions (1963) and (1968), the forerunners of African Caribbean and Pacific (ACP) Lome Convention (1975) and Cotonou Agreement (2000) established the Association EuroAfrique, grouping fourteen ex-French colonies, three ex-Belgian and one Italian, purposely to carter for French interests based on the thinking in France that what was good for France was also good for Europe. Adekeye questioned how far EU military actions and interventions through the European Fund for Development, which financed such operations such as US and NATO in Libya (2011), and the French Operation Licorne, an intervention of 4,600 soldiers in Cote d’Ivoire in 2002 are in the interest of Africa.[31]
Conclusion
This paper is not a catalogue of recriminations about the harms which Africa endured and continues to endure under an international rule of law system which itself is undergoing significant challenges. The UN Charter and post-World War II world order is proving inadequate to meet challenges which the UN legal architecture did not contemplate. The UN Charter pledges and obligations have been undermined by the very superpowers the UN placed in the international peace and security mandate for the collective security of humanity.
The framers of the UN Charter in 1945, which was anchored on the Westphalian state-centric system, did not contemplate that non-state actors would emerge and possess tremendous ability to breach the protective shield of state sovereignty, with a tremendous ability to influence foreign relations and world governance. Climate change, pandemics, modern technology and impending threats to world peace and security have signaled the advent of a potential new world order. This calls for urgent reforms of the UN system to take into consideration major transformations and challenges which the post-World War II world order have undergone, for the collective survival of humanity. The new world order will need a reformed and reinvigorated UN Charter which Africa will participate in formulating as subjects of international law with a major role in deciding binding transformative world problems. The new world order requires recognition of the contributions of Africa with its abundant resources to the economy and security stability and progress of the world. A UN Charter which legitimized colonialism and perpetuated injustices and existential crisis against Africa and major racial nationalities in many parts of the world, and which haunted the continent and with profound generational consequences, no longer meets the existential needs of humanity. The new world order must reform the UN Charter to reflect the face of humanity, world diversity and economic sovereignty.
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Adekeye Adebajo; Kaye Whiteman (Ed), The EU and Africa: From EuroAfrique To Afro-Europa (17,24, 29, 30,31, 38, 275 Hurst Company, London (Publishers) Ltd, 41 Great Russell Street, London, WCC1B 3 PL www, hurstpub.co.uk
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Legal consequences for states of the continued presence of South Africa in Namibia9South West Africa) Notwithstanding Security Council Resolution 276 (1970) , Advisory Opinion (1971) I.C.J Reports 16.at 31-32, paras.52-53 East Timor (Portugal and Australia) (1995), I.C.J Reports , 12 90. At 102, para.29.
Joseph Modeste Sweeney, Covey T. Oliver, Noyes E. Leech, International Legal System, Cases and Material- Third Edition (1988) p 639 University Casebook Series, The Foundation Press INC,615 Merrick, Ave Westbury, N.Y.11590
https://au.int/en/treaties/african-charter-human-and-peoples-rights https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and
Falana v African Union https://africanlii.org/akn/aaau/judgment/afchpr/2012/5/eng@2012-06-26
Atabong Denis Atemkeng v African Union https://africanlii.org/akn/aa au/judgment/afchpr/2013/51/eng@2013-03-15
The Peace of Westphalia: Ending the Thirty Years’ War
Article 4 (m) of the Constitutive ACT of the African Union Article 4 ((m) respect for democratic principles, human rights, the rule of law and good governance)
Olivier De Schutter, International Human Rights Law (2010), p 953-954, Cambridge University Press
Protocol to African Charter on Human and Peoples’ Rights Establishing the African Court on Human and Peoples’ Rights (entered into force on 25 Jan.2004)
[1] “The Peace of Westphalia: Ending the Thirty Years War.: German Culture: https://germanculture.com.ua/german-history/the-peace-of-westphalia-1648/
[2] Max Hilaire, The Evolution And Transformation of International Law: Developments in International Law, From the Peace of Westphalia to The Post United Nations Charter, (2023) p 18
[3] Ibid., footnote 2 p 35-36
[4] Full text of “General Act of the Conference of Berlin Concerning the Congo“. Available at: https://archive.org/stream/jstor-2212022/2212022_djvu.txt
[5] Charter of the United Nations. https://treaties.un.org/doc/publication/ctc/uncharter.pdf
[6] Uniting for Peace General Assembly resolution 377 (V), Uniting for Peace, A/RES/377(V)[AD]. https://digitallibrary.un.org/record/666464?v=pdf&ln=en
[7] International Court of Justice, Advisory Opinion of 21 June 1971. 53 – Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Permalink: https://www.icj-cij.org/index.php/node/103754; International Court of Justice, Western Sahara. Permalink: https://www.icj-cij.org/case/61
[8] Ibid footnote 2 pn33,35,36
[9] Declaration of the Establishment of the State of Israel, 1948. Available at Jewish Virtual Library: https://www.jewishvirtuallibrary.org/israel-wing/government-politics/constitutional-framework/the-declaration-of-the-establishment-of-the-state-of-israel
[10] Convention on the Prevention and Punishment of the Crime of Genocide. Adopted 9 December 1948. Permalink: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide
[11] The future of the Trust Territory of the Cameroons under United Kingdom administration. 1961,
UN. General Assembly (15th sess. : 1960-1961) https://digitallibrary.un.org/record/206162?ln=en&v=pdf
[12] Remembering the Forgotten War: Korea, 1950-1953, Naval History and Heritage Command. https://www.history.navy.mil/our-collections/art/travelling-exhibits/remembering-the-forgotten-war-korea-1950-1953.html
[13] Anne Bayefsky, Self-determination in International Law: Quebec and Lessons Learnt: Legal Opinions and Selected and Introduced, Kluver International, P.O Box 85889. 2508 LN, The Hague Netherlands
[14] Ibid., footnote 10
[15] Legal consequences for states of the continued presence of South Africa in Namibia South West Africa) Notwithstanding Security Council Resolution 276 (1970) , Advisory Opinion (1971) I.C.J Reports 16.at 31-32, paras.52-53 East Timor (Portugal and Australia) (1995), I.C.J Reports , 12 90. At 102, para.29.
[16] Joseph Modeste Sweeney, Covey T. Oliver, Noyes E. Leech, International Legal System, Cases and Material-(1988) Third Edition p 639 University Casebook Series (1989) The Foundation Press INC, 615 Merrick, Ave, Westbury, N.Y.11590 (1988)
[17] United Nations General Assembly Resolution 1514 ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ (1960); United Nations General Assembly Resolution 2106 (XX) ‘International Convention on the Elimination of All Forms of Racial Discrimination’ (1969); United Nations General Assembly Resolution 55/146 ‘Second International Decade for the Eradication of Colonialism’ (2001); United Nations General Assembly Resolution 65/119 ‘Third International Decade for the Eradication of Colonialism’ (2011); United Nations General Assembly Resolution 3187 ‘Restitution of Works of Art to Countries Victims of Appropriation’ (1973).
[18] United Nations Sub-Commission on the Promotion and Protection of Human Rights Resolution 2002/5 ‘Recognition of Responsibility and Reparation for Massive and Flagrant Violations of Human Rights Which Constitute Crimes Against Humanity and Which Took Place During the Period of Slavery, Colonialism and Wars of Conquest’ (2002).
[19] United Nations General Assembly Resolution 76/16 ‘Return or Restitution of Cultural Property to the Countries of Origin’ (2021).
[20] United Nations General Assembly Resolution 60/147 (n 42).
[21] Ibid.
[22] Factory at Chorzów (Germany v Poland) Judgment no 13 (PCIJ, 13 September 1928).
[23] Framework Principles for Dealing with Collections from Colonial Contexts Agreed by the Federal Government Commissioner for Culture and the Media, the Federal Foreign Office Minister of State for International Cultural Policy, the Cultural Affairs Ministers of the Länder and the Municipal Umbrella Organisations, 13 March 2019; https://www.cp3c.org/relevant_documents/cp3c_Framework_Principles_for_dealing_with_collections_from_colonial_contexts_20210812.pdf accessed 29 May 2024.
[24] Charles Taku, Africa: Hopes and Aspirations Crucified (Tencam Press Douala, Cameroon 1999)17.
[25] Ibid.
[26] Oscar Holland, ‘US Returns Over 17,000 Looted Artifacts to Iraq’ (CNN, 5 August 2021) https://www.cnn.com/style/article/iraq-us-artifacts-repatriation/index.html accessed 29 May 2024.
[27] Anne Bayefsky, footnote 7 p727-728
[28] African (Banjul) Charter on Human and Peoples’ Rights (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev., 21 I.L.M. 58 (1982), entered into force 21 October 1986)
[29] Adekeye Adebajo; Kaye Whiteman (Ed) The EU and Africa: From EuroAfrique To Afro-Europa (2012) p 17,24, 29, 30,31, 38, 275 Hurst Company, London (Publishers) Ltd,41 Great Russell Street, London, WCC1B 3 PL www, hurstpub.co.uk
[30] Ibid footnote 22 pp 30,31
[31] Ibid footnote 22, pp 17,24, 29, 30,31, 38, 275
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